Answer: The statutory retirement age is the age at which employees may start to receive pension benefits and employers can terminate the employment relationship with the employee in accordance with the Employment Contract Law.
The national statutory retirement age for enterprise employees is 60 years for male employers, 50 years for female worker employees, and 55 years for female cadre employees. The retirement age for those engaged in underground, high-temperature, high-altitude, particularly heavy physical labor, or other work harmful to their health is 55 years for men and 45 years for women. For employees who are completely incapacitated due to illness or non-work-related issues, certified by the labor appraisal committee, the retirement age is 50 years for men and 45 years for women. 1The former Ministry of Labor and Social Security issued on March 9, 1999 the Notice on Stopping and Correcting the Relevant Issues Concerning the Early Retirement of Enterprise Employees in Violation of State Regulations (No.8, 1999, issued by the Ministry of Labor and Social Security).1
A common issue with the aforementioned rule is the retirement age of female employees. As mentioned above, the retirement age for female employees distinguishes the status of cadres and workers. Cadres female employees retire at the age of 55 and workers female employees retire at the age of 50.
Female cares are those on management and technical positions, others are female workers. At present, there appears to be no law stipulating what type of position falls within the scope of management positions, but court decisions usually take management personnel higher than department managers, including financial, technical, and marketing directors and other members of management, as employees on management positions. Technical positions do not appear to have a specific rules of scope either. In judicial practice, employee’s current position, employee’s employment contract agreement, the government’s personnel file records, and social insurance payment registration in this regard may affect the identification of a female employee when disputes occur. At present, there are three practices provided in regional laws and regulations and the judicial decisions.
The first approach is based on the position of a female employee when she reaches the age of 50. She will be identified as a cadre employee if she is on management or technical position at the age of 50. For example, Beijing decides whether a female employee is a worker or a cadre according to whether her position is a management or technical position at the age of 50.2Beijing Xunfengguang Communication Technology Development Co., Ltd. and Liu Yongxia Labor Dispute Second Instance Civil Judgment Beijing First Intermediate People’s Court Civil Judgment (2022) Beijing 01 Min Zhong No.778. “At present, the Beijing Municipal People’s Society Department does not determine the retirement age of female workers according to the status of cadres and workers. It is judged according to the difference between management positions and professional and technical positions and non-management positions, and based on the position and job responsibilities signed in the last employment contract before retirement.”
The second approach is to not only look at the female employee’s position at the age of 50, but also consider the length of time she has been in the management or technical position. For example, in Guangdong Province (including Shenzhen), if a female employee has worked in a management position for more than one year before reaching the age of 50, the retirement age should be 55; otherwise, the employee should retire at the age of 50 as a worker. Fujian Province requires female employees to work in management positions for more than five years before the age of 50 to be eligible to retire at the age of 55 as cadre.
The third approach is to determine female employees’identities as cadres or workers based on their social insurance registration status.3Guangdong Foshan Intermediate People’s Court (2021) Yue 06 Min Zhong No.6398. The judgment of the second instance of the labor dispute between Xu Yonghong and Guangfo Commercial and Trade City Development Co., Ltd. in Nanhai District of Foshan City.”This Court holds that whether an employee is a worker or a cadre, and whether his retirement age should be 50 or 55 years old, belongs to the scope of the authority of the social security administrative department. On the premise that Xu Yonghong did not submit to the social security administrative department to identify her as a cadre, the court of first instance identified Xu Yonghong as a female worker based on the state of the social insurance, purchased by Guangfo Trade City Development Company for Xu Yonghong, of “female worker”. It is not inappropriate for the court of the first instance to find that the employee¡¯s retirement age is 50 years old, and this court maintains it.” Chen Xiaohui v. Jiangxi Xinhua Distribution Group Co., Ltd., Jiangxi Provincial People’s High Court Civil Ruling (2017) No.645. “Chen Xiaohui was a worker when she entered the Xinhua Bookstore in Quannan County, and the status of the worker in her resume remained unchanged after that, although she was appointed as the manager of the Xinhua Bookstore in Longnan County in 2002. However, it does not mean that they have the status of national cadres. The cadre status of the staff of the employer can not be determined only by the employer and its position, but should be determined by the governmental organization personnel department according to the relevant procedures. Chen Xiaohui’s personnel files do not have the relevant materials identifying her as a cadre by the organization personnel department. Chen Xiaohui’s claim that she has worked in a management position for many years and should be applied the standard of retirement age of 55 years old lacks legal basis.”
Please refer to What are the current national and local regulations and referable case law on retirement age? This discriminatory rule artificially creates numerous unnecessary disputes: female employees may insist they are cadres being entitled to retire at the age of 55, while employers request the employees to retire at the age of 50 as workers. The conflicts in retirement age rules for different types of employees increase the uncertainty of the law and dispute costs, and reflect discriminations in gender, position, and identify. We call for future legislative amendments to simplify the rules and eliminate the legislative gender, position, and identity discriminations.
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- 1The former Ministry of Labor and Social Security issued on March 9, 1999 the Notice on Stopping and Correcting the Relevant Issues Concerning the Early Retirement of Enterprise Employees in Violation of State Regulations (No.8, 1999, issued by the Ministry of Labor and Social Security).1
A common issue with the aforementioned rule is the retirement age of female employees. As mentioned above, the retirement age for female employees distinguishes the status of cadres and workers. Cadres female employees retire at the age of 55 and workers female employees retire at the age of 50.
Female cares are those on management and technical positions, others are female workers. At present, there appears to be no law stipulating what type of position falls within the scope of management positions, but court decisions usually take management personnel higher than department managers, including financial, technical, and marketing directors and other members of management, as employees on management positions. Technical positions do not appear to have a specific rules of scope either. In judicial practice, employee’s current position, employee’s employment contract agreement, the government’s personnel file records, and social insurance payment registration in this regard may affect the identification of a female employee when disputes occur. At present, there are three practices provided in regional laws and regulations and the judicial decisions.
The first approach is based on the position of a female employee when she reaches the age of 50. She will be identified as a cadre employee if she is on management or technical position at the age of 50. For example, Beijing decides whether a female employee is a worker or a cadre according to whether her position is a management or technical position at the age of 50.2Beijing Xunfengguang Communication Technology Development Co., Ltd. and Liu Yongxia Labor Dispute Second Instance Civil Judgment Beijing First Intermediate People’s Court Civil Judgment (2022) Beijing 01 Min Zhong No.778. “At present, the Beijing Municipal People’s Society Department does not determine the retirement age of female workers according to the status of cadres and workers. It is judged according to the difference between management positions and professional and technical positions and non-management positions, and based on the position and job responsibilities signed in the last employment contract before retirement.” - 2
- 3Guangdong Foshan Intermediate People’s Court (2021) Yue 06 Min Zhong No.6398. The judgment of the second instance of the labor dispute between Xu Yonghong and Guangfo Commercial and Trade City Development Co., Ltd. in Nanhai District of Foshan City.”This Court holds that whether an employee is a worker or a cadre, and whether his retirement age should be 50 or 55 years old, belongs to the scope of the authority of the social security administrative department. On the premise that Xu Yonghong did not submit to the social security administrative department to identify her as a cadre, the court of first instance identified Xu Yonghong as a female worker based on the state of the social insurance, purchased by Guangfo Trade City Development Company for Xu Yonghong, of “female worker”. It is not inappropriate for the court of the first instance to find that the employee¡¯s retirement age is 50 years old, and this court maintains it.” Chen Xiaohui v. Jiangxi Xinhua Distribution Group Co., Ltd., Jiangxi Provincial People’s High Court Civil Ruling (2017) No.645. “Chen Xiaohui was a worker when she entered the Xinhua Bookstore in Quannan County, and the status of the worker in her resume remained unchanged after that, although she was appointed as the manager of the Xinhua Bookstore in Longnan County in 2002. However, it does not mean that they have the status of national cadres. The cadre status of the staff of the employer can not be determined only by the employer and its position, but should be determined by the governmental organization personnel department according to the relevant procedures. Chen Xiaohui’s personnel files do not have the relevant materials identifying her as a cadre by the organization personnel department. Chen Xiaohui’s claim that she has worked in a management position for many years and should be applied the standard of retirement age of 55 years old lacks legal basis.”