Answer:
According to the Labour Code, the Employer will promulgate the criteria for assessing the task completion level of the Employee after consulting with the organisation representing employees at the grassroots level[1]including the grassroots trade union and the employees’ organisation at the enterprise[2]. However, the Labour Code does not require the Employer to get the consent or approval of the organisation representing employees at the grassroots level in order for the validity of the criteria for assessing task completion level. Therefore, it can be inferred that the Employer only need the organisation representing employees at the grassroots level to review and give opinions about the criteria for assessing task completion level as a way to show the transparent process, but they do not have to get the consent or approval of this organisation.
However, there is a point of view, which is often referred to by Courts in settling labour disputes, suppose that the “consultation” here must be construed as the “consent” of the organisation representing employees at the grassroots level to the criteria for assessing task completion level. Otherwise, the promulgatation of criteria is just formalistic which may be unreasonable and cause difficulties to the Employee.
Even if the organisation representing employees at the grassroots level has fully agreed with the criteria for assessing task completion level, it will just be an advantage for the Employer in the labour disputes where the Employer unilaterally terminates the LC for the reason that the Employee cannot fulfil his or her tasks, instead of a guarantee that the Court will always consent to the regulation on evaluating the task completion level set by the Employer. It is because in a dispute the Court will also consider other relevant elements than the laws, such as the appropriateness of the regulation when it is applied from time to time. For example, the Employer cannot set the sales target for the Employee who sells products for use in the wet season as high as the sales in the dry season.
However, having the approval or agreement from the organisation representing employees at the grassroots level on the criteria for assessing the task completion level will definitely make the Employer to be in favour in disputes with the Employee in comparison to the case of their opinions being “disagree” or “no comment” or “the Employer needs to comply with the regulations of labour law.”
[1]Article 36.1 (a) of the Labour Code
[2]Article 3.3 of the Labour Code
