Answer: See the following national regulations, judicial decisions, and local regulations of Guangdong Province, Liaoning Province, Fujian Province, Jiangsu Province, Sichuan Province, and Chongqing Municipality.
Article 75 of the Ministry of labor (1995) No. 309 file stipulates that retirement age and condition for employees who transitioned from former worker position to current cadre or technical position or from former cadre or technical position to current worker position, during the employer’s transition into employment contract system, shall be determined according to national regulations in relation to their current position.
Article 3 (1) (2) of the Measures of the Department of Human Resources and Social Security of Guangdong Province on the Qualification of Enterprise Employees Participating in Basic Pension Insurance (Yue Ren She Gui (2019) No.1) stipulates that: identifying female cadre or worker employees shall be in accordance with the Circular of the Ministry of Labor and Social Security on Stopping and Correcting the Problems Related to the Early Retirement of Enterprise Employees in Violation of State Regulations and the Opinions on the Handling of the Problems Related to the Implementation of Document No.114 of Yue Lao Xin (1999). The retirement age for those who work in workers’ positions is 50 years and for those who work in management and technical positions is 55 years. The current position shall be determined as per the position set on the employment contract, or the current position on which the employee has been working for more than one year.
Liyoubi (Dalian) Machinery Co., Ltd. and Xu Huashan Labor Dispute Retrial Liaoning Provincial People’s High Court Civil Ruling (2018) Liao Min Shen No.3198. ¡°The current position is determined as the management position agreed-upon in the employment contract.¡±
Article 1 (7) of the Notice of the Ministry of Labor and Social Security of Fujian Province on Regulating the Management of Examination and Approval of Retirement of Employees (Min Lao She (2001) No.362) stipulates that the retirement age of female employees shall be determined according to their positions before retirement. Among them, female cadres who have worked continuously for five years in their positions before retirement shall retire at the age of 50; female workers who have worked in management positions for five consecutive years before retirement shall retire at the age of 55.
Article 18 of the Regulations on Basic Pension insurance for Employees of Enterprises in Jiangsu Province stipulates that female worker employees, including female worker employees who have worked in management or technical positions before the age of 45 and continued afterwards, retire at the age of 50. Female social insurance participants who are self-employed or flexible employees, female unemployed persons who retain the pension insurance relationship, and female social insurance participants with rural household registration retire at the age of 55.
The Reply of Chongqing Municipal Human Resources and Social Security Bureau on the Retirement of Personnel Participating in the Basic pension insurance for Enterprise Employees (Yu Ren She Han (2015) No.118) explicitly States: “All types of enterprises that have established a personnel system open for management position competition and promotion and demotion shall abolish enterprises’ administrative stratum. Enterprises shall no longer apply the administrative level of state organs, and managers are no longer entitled to the administrative level treatment of cadres of state organs, breaking the traditional boundaries between “cadres” and “workers” and changing identity management into position management. The status of female workers and cadres is defined by enterprises as management positions and non-management positions.
Article 55 of the Detailed Rules for the Implementation of the Combination of Social Overall Planning and Personal Accounts of Basic Pension Insurance for Enterprise Employees in Chengdu (CLSF (2006) No.134) stipulates: “The normal retirement age of enterprise employees shall be implemented in accordance with the current provisions of the state and the province, that is, male employees being 60 years old, and female employees working in management and technical positions being 55 years old, and female workers working on production, operation, and service positions being the age of 50.
The Opinions of Hunan Province on Several Policy Issues Concerning the Improvement of the Basic Pension Insurance System for Enterprise Employees (XLSZZ (2006) No.13) further clarifies the retirement age of female employees and the specific criteria for distinguishing them: the retirement age of female employees employed as cadres granted by competent personnel administrative department is 55 years old; the retirement age of female workers who started work before and after the implementation of the Labor Law shall be determined based on their long-term positions; the retirement age for those who have worked for a long time in management positions shall be 55 years old; and the retirement age for those who have worked for a long time in production positions shall be 50 years old; those who hold certain administrative positions in the employer or are not directly engaged in the production activities of the employer or are not directly engaged in the front-line production, service, and service positions in the industry shall be determined as management positions. Employees who have worked on management positions for a long time and whose accumulative service is longer than that of production positions shall be considered to have worked on management positions for a long time, and their retirement age shall be 55; on the contrary, the retirement age is 50 years old for long-term work in production positions.
Notice on Improving the Retirement Age of Female Employees in Enterprises issued by Jiangxi Provincial Department of Human Resources and Social Security (GRSF (2019) No.4). When a female employee in an enterprise reaches the age of 50, if she works in a management (technical) position, the retirement age shall be 55 years old; if she works in a worker position, the retirement age shall be 50 years old.
Shenzhen Intermediate People’s Court (2016) Yue 03 Min Zhong No. 22042. Li Mou Shenzhen Nepstar Health Pharmacy Chain Co., Ltd. and other labor dispute appeal cases. Mrs. Li Mou retired as a cadre and now serves as a quality management manager, the court ruled that she should be identified as a cadre based on her current position.
Guangzhou Wangji Catering Service Co., Ltd. Guangdong Huadu City (District) People’s Court (2022) Yue 0114 Min Chu No.12031, the civil judgment of the first instance of the labor dispute between the company and Chen Xinyi. The court stated that: “Chen Xinyi has worked in this position for more than one year. According to the above provisions, regardless her status in participating social insurance, her identity should be determined by her current position. Chen Xinyi’s position was a management role before her termination, thus her statutory retirement age should be 55 years old.”
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