82 83 CHAPTER 7 Security on Deepening the Reform of Personnel, Labor, and Distribution Systems within State-Owned Enterprises (State Economic and Trade Commission Document No. 230, 2001). According to the document, personnel working in managerial positions are considered as managerial personnel. Managerial personnel refers to individuals holding administrative leadership positions within the enterprise, personnel working in various functional management bodies, and individuals engaged in full-time management work in various production and operation organizations. The author believes that the initial differentiation of retirement ages for female employees between cadre and worker positions in China was based on the difference in labor intensity at work. To protect the physical health of female workers who face higher labor intensity, an earlier retirement age was set for them. Therefore, as China’s modernization and urbanization processes have progressed, the number of female workers in worker positions (or nonmanagerial positions) has gradually decreased or at least not increased. Moreover, with the improvement of the economic development level, the average lifespan of female employees has significantly increased. Therefore, when determining the retirement age for female employees, the scope of nonmanagerial positions should not be excessively expanded. Regarding the understanding of managerial positions, as stated in the aforementioned document No. 230, individuals holding administrative leadership positions at various levels and personnel working in various functional management bodies are easy to explain. The phrase “individuals engaged in full-time management work in various production and operation organizations” should be understood as the managerial positions where individuals are responsible for “managing affairs” within the employing organization. However, with the increasing diversification of enterprise forms and job positions, it has become challenging to provide precise or exhaustive definitions for managerial positions and non-managerial positions. In such cases, the principle of party autonomy in civil activities can be fully exercised, which means that the designation of whether the position held by a female employee has a managerial nature can be agreed upon between the female employee and the employer in the labor contract. If there is no agreement, the employer, as the party responsible for employment management, can exercise their management functions and specify whether different positions have managerial nature in regulations, organizational structures, or other relevant documents. IV. SUMMARY In the aforementioned case presented at the beginning of this article, where the female employee and the employer have a labor contract stating that the job position is a managerial role, the female employee’s legal retirement age should be 55 years old. The employer’s termination of the labor contract when the female employee turns 50, citing her worker status based on social security records, is not in accordance with the law. Therefore, the arbitration committee’s rejection of the female employee’s arbitration request, based on her worker status derived from social security records, lacks legal grounds. However, ultimately, the main reason for the erroneous judgments made by the employer and the arbitration committee lies in the lack of clear regulations regarding the retirement age of female employees in current laws and regulations. The author suggests that, considering the ongoing trend of retirement age reforms at the national policy level and the fact that the average lifespan of women in our country exceeds that of men, it may be worth exploring the possibility of unifying the retirement age for female employees at 55 years old. This would eliminate disputes and subsequent legal actions concerning whether female employees hold managerial or non-managerial positions. Even if unifying the retirement age for female employees is not feasible, it is crucial for our labor legal system to address the issue of retirement age and its determination for female employees through normative documents or judicial interpretations. About Tianxi Law Firm Tianxi Law Firm, with its focus on high-end litigation, gained recognition from renowned legal rating agencies right from its inception. It was shortlisted for the “Regional Most Promising Law Firm” award in the Asian Legal Business (ALB). The firm’s team consists of top-notch professionals in various legal fields, including labor & employment, criminal defense, and banking & securities. Tianxi Law Firm always upholds the philosophy of being “more professional, more proficient” and pursues an integrated management and development approach encompassing team-building, brand operation, talent strategy, and management strategy. The firm is dedicated to becoming a people-centered, forwardthinking, and value-driven boutique litigation law firm that emphasizes symbiotic relationships. Security on Deepening the Reform of Personnel, Labor, and Distribution Systems within State-Owned Enterprises (State Economic and Trade Commission Document No. 230, 2001) issued in 2001 provides clear and definitive guidance. Article 2 of the document states, “Abolish administrative levels within enterprises. Enterprises should no longer use administrative levels of government agencies or compare them with the administrative levels of civil servants in state agencies to determine the administrative levels of management personnel. Break the boundaries between ‘cadre’ and ‘worker’, and shift from identity management to position management. Those engaged in managerial work positions are considered management personnel. After a change in position, their income and other benefits should be adjusted accordingly based on the new position.” “Management personnel refer to individuals within the enterprise who hold various levels of administrative leadership positions, work in functional management institutions, and those who are engaged full-time in management work in various production and operation organizations.” Therefore, since the introduction of the above regulations, the criteria for determining the retirement age of female employees by the labor and social security departments have shifted from differentiating between worker and cadre status to differentiating between managerial positions (professional and technical positions) and non-managerial positions. In the specific implementation of retirement management for female employees, various regions have also introduced more detailed regulations. For example, the Notice of the Beijing Municipal Human Resources and Social Security Bureau on Strengthening Basic Management and Standardizing Retirement Approval Work (Beijing HRSSB Document No. 49, 2011) stipulate in its Appendix 1 “Informative Document on the Retirement Approval Workflow for Beijing’s Basic Pension Insurance”: Processing Conditions. The normal retirement criteria are as follows: Men must reach the age of 60, women in managerial and professional technical positions must reach the age of 55, and women in non-managerial positions must reach the age of 50. The cumulative premiums payment period (including equivalent payment periods) must be at least 15 years. Application Documents. The basic documents required for normal retirement include employee files and the Beijing Basic Pension Insurance Benefit Approval Form. Female employees applying for retirement based on non-managerial positions must provide their retirement application, labor contract, job agreement, and other relevant supporting documents. Article 2 of Transmitting the Notice of the Ministry of Labor and Social Security on Preventing and Correcting Issues Related to the Premature Retirement of Enterprise Employees in Violation of National Regulations (Guangdong Labor and Social Security Department Document [1999] No. 114) stipulates, “The identification of female employees’ current positions should be implemented in accordance with Article 75 of the former 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 [1995] No. 309), which states, ‘After the implementation of the labor contract system for all employees of the employing organizations, if a worker transitions from their original worker position to the original cadre (technical) position, or from the original cadre (technical) position to the original worker position within the employing organization, their retirement age and conditions shall be implemented according to the national regulations of their current position.’ The determination of a female employee’s current position should be based on the labor contract signed between the employing organization and the worker. Regardless of their original status as a worker or cadre, their current position should be determined based on the position specified in the labor contract. If they have worked in their current position for more than one year, their identity should be determined based on their current position. The retirement age for those working in worker positions is 50 years old, while those working in managerial positions should retire at 55 years old.” Based on the above review and analysis, it is clear that the current laws and regulations in China determine the retirement age criteria for female employees based on their current positions before retirement. The determination of the current position is based on the labor contract signed between the employer and the employee. III. DIFFERENTIATION OF POSITIONS WITH DIFFERENT CHARACTERISTICS At present, there are two main expressions regarding the basis for determining the retirement age of female employees based on their positions. One approach categorizes positions into cadre (technical) positions and worker positions, while the other approach distinguishes between managerial positions (professional and technical positions) and nonmanagerial positions. The author believes that both of these expressions essentially determine the nature of the position based on the job content of the female employee’s current position. Apart from the differences in wording, they do not have a substantial impact on the determination of retirement age conditions for female employees. The current confusion in these expressions is primarily due to the lack of clear provisions in laws and regulations. Currently, the definitions of the terms “managerial positions” and “non-managerial positions” are only specified in the above-mentioned Opinions of State Economic and Trade Commission, Ministry of Personnel, Ministry of Labor and Social CHAPTER 7
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