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LABOR LAWS |
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Labour Act. Dated
(China Daily, 6 July 1994, p. 2.)
· CHAPTER I. GENERAL
PROVISIONS (Sections 1-9)
· CHAPTER II.
PROMOTION OF EMPLOYMENT (Sections 10-15
· CHAPTER III. LABOUR
CONTRACTS AND COLLECTIVE CONTRACTS (Sections 16-35
· CHAPTER IV. WORKING
HOURS, REST AND VACATIONS (Sections 36-45
· CHAPTER V. WAGES
(Sections 46-51
· CHAPTER VI.
OCCUPATIONAL SAFETY AND HEALTH (Sections 52-57
· CHAPTER VII. SPECIAL
PROTECTION FOR FEMALE STAFF AND JUVENILE WORKERS (Sections
58-65
· CHAPTER VIII.
VOCATIONAL TRAINING (Sections 66-69
· CHAPTER IX. SOCIAL
INSURANCE AND WELFARE (Sections 70-76
· CHAPTER X. LABOUR
DISPUTES (Sections 77-84
· CHAPTER XI.
SUPERVISION AND INSPECTION (Sections 85-88
· CHAPTER XII. LEGAL
RESPONSIBILITY (Sections 89-105
· CHAPTER XIII.
SUPPLEMENTARY PROVISIONS (Sections 106-107
Section
1. This Law is
formulated in accordance with the Constitution in order to protect the
legitimate rights and interests of labourers,
readjust labour relationship, establish and safeguard
a labour system suited to the socialist market
economy, and promote economic development and social progress.
Section
2. This Law
applies to all enterprises and individual economic organizations (hereafter
referred to as employing units) within the boundary of the People's Republic of
State organs, institutional
organizations and societies as well as labourers who
form a labour contract relationship therewith shall follow
this Law.
Section
3. Labourers shall have the right to be employed on an equal
basis, choose occupations, obtain remuneration for their labour,
take rest, have holidays and leaves, obtain protection of occupational safety
and health, receive training in vocational skills, enjoy social insurance and
welfare, and submit applications for settlement of labour
disputes, and other rights relating to labour as
stipulated by law.
Labourers shall fulfil
their labour tasks , improve
their vocational skills, follow rules on occupational safety and health, and
observe labour discipline and professional ethics.
Section
4. The employing
units shall establish and perfect rules and regulations in accordance with the
law so as to ensure that labourers enjoy the right to
work and fulfil labour
obligations.
Section
5. The State shall
take various measures to promote employment, develop vocational education, lay
down labour standards, regulate social incomes,
perfect social insurance system, coordinate labour
relationship, and gradually raise the living standard of labourers.
Section
6. The State shall advocate the participation
of labourers in social voluntary labour
and the development of their labour competitions and
activities of forwarding rational proposals, encourage
and protect the scientific research and technical renovation engaged by labourers, as well as their inventions and creations; and
commend and award labour models and advanced workers.
Section
7. Labourers shall have the right to participate in and organize
trade unions in accordance with the law.
Trade Unions shall represent
and safeguard the legitimate rights and interests of labourers,
and independently conduct their activities in accordance with the law.
Section
8. Labourers shall, through the assembly of staff and
workers or their congress, or other forms in accordance with the provisions of
laws, rules and regulations, take part in democratic management or consult with
the employing units on an equal footing about protection of the legitimate rights
and interests of labourers.
Section
9. The labour administrative department of the State Council shall
be in charge of the management of labour of the whole
country.
The labour
administrative departments of the local people's governments at or above the
county level shall be in charge of the management of labour
in the administrative areas under their respective jurisdiction.
CHAPTER II. PROMOTION OF EMPLOYMENT
Section
10. The State
shall create conditions for employment and increase opportunities for
employment by means of the promotion of economic and social development.
The State shall encourage
enterprises, institutional organizations, and societies to initiate industries
or expand businesses for the increase of employment within the scope of the
stipulation of laws, and administrative rules and regulations.
The State shall support labourers to get jobs by organizing themselves on a
voluntary basis or by engaging in individual businesses.
Section
11. Local people's
governments in various levels shall take measures to develop various kinds of
job-introduction agencies and provide employment services.
Section
12. Labourers shall not be discriminated against in employment,
regardless of their ethnic community, race, sex, or religious belief.
Section
13. Females shall
enjoy equal rights as males in employment. It shall not be allowed, in the
recruitment of staff and workers, to use sex as a protext
for excluding females from employment or to raise recruitment standards for the
females, except for the types of work or posts that are not suitable for
females as stipulated by the State.
Section
14. Where there are special stipulations in
laws, rules and regulations on the employment of the disabled, the personnel of
national minorities, and demobilized army men, such special stipulations shall
apply.
Section
15. No employing
units shall be allowed to recruit juveniles under the age of 16.
Units of literature and art,
physical culture and sport, and special arts and crafts that need to recruit
juveniles under the age of 16 must go through the formalities of examination
and approval according to the relevant provisions of the State and guarantee
their right to compulsory education.
CHAPTER III. EMPLOYMENT CONTRACTS AND COLLECTIVE AGREEMENTS
Section
16. A labour contract is the agreement reached between a labourer and an employing unit for the establishment of the
labour relationship and the definition of the rights,
interests and obligations of each party.
A labour
contract shall be concluded where a labour
relationship is to be established.
Section
17. Conclusion and
modification of a labour contract shall follow the
principles of equality, voluntariness and unanimity
through consultation, and shall not run counter to the stipulations of laws,
administrative rules and regulations.
A labour
contract once concluded in accordance with the law shall possess legal binding
force. The parties involved must fulfil the
obligations stipulated in the labour contract.
Section
18. The following labour contracts shall be invalid:
· (1) labour
contracts concluded in violation of laws, administrative rules and regulations;
and
· (2) labour
contracts concluded by resorting to such measures as cheating and intimidation.
An invalid labour contract shall have no legal binding force from the
very beginning of its conclusion. Where a part of a labour
contract is confirmed as invalid and where the validity of the remaining part
is not affected, the remaining part hall remain valid.
The invalidity of a labour contract shall be confirmed by a labour
dispute arbitration committee or a people's court.
Section
19. A labour
contract shall be concluded in written form and contain the following clauses:
· (1) term of labour
contract;
· (2) contracts of work;
· (3) labour
protection and working conditions;
· (4) labour
remuneration;
· (5) labour
disciplines;
· (6) conditions for the termination of a labour contract; and
· (7) responsibility
for the violation of a labour contract.
Apart from the required
clauses specified in the preceding paragraph, other contents in a labour contract may be agreed upon through consultation by
the parties involved.
Section
20. The term of a labour contract shall be divided into fixed term, flexible
term or taking the completion of a specific amount of work as a term.
In case a labourer has kept working in a same employing unit for ten
years or more and the parties involved agree to extend the term of the labour contract, a labour contract
with a flexible term shall be concluded between them if the labourer
so requested.
Section
21. A probation
period may be agreed upon in a labour contract. The
longest probation period shall not exceed six months.
Section
22. The parties
involved in a labour contract may reach an agreement
in their labour contract on matters concerning
keeping the commercial secrets of the employing unit.
Section
23. A labour contract shall terminate upon the expiration of its
term or the emergence of the conditions for the termination of the labour contract as agreed upon by the parties involved.
Section
24. A labour contract may be revoked upon agreement reached
between the parties involved through consultation.
Section
25. The employing
unit may revoke the labour contract with a labourer in any of the following circumstances:
· (1) to be proved not up to the
requirements for recruitment during the probation period;
· (2) to seriously violate labour disciplines or the rules and regulations of the
employing unit;
· (3) to cause great losses to the employing
unit due to serious dereliction of duty or engagement in malpractice for
selfish ends; and
· (4) to be
investigated for criminal responsibilities in accordance with the law.
Section
26. In any of the following circumstances, the
employing unit may revoke a labour contract but a
written notification shall be given to the labourer
30 days in advance;
· (1) where a labourer
is unable to take up his original work or any new work arranged by the
employing unit after the completion of his medical treatment for illness or
injury not suffered at work;
· (2) when a labourer
is unqualified for his work and remains unqualified even after receiving a
training or an adjustment to any other work post; and
· (3) no agreement
on modification of the labour contract can be reached
through consultation by the parties involved when the objective conditions
taken as the basis for the conclusion of the contract have greatly changed so
that the original labour contract can no longer be
carried out.
Section
27. During the period of statutory
consolidation when the employing unit comes to the brink of bankruptcy or runs
into difficulties in production and management, and if reduction of its
personnel becomes really necessary, the unit may make such reduction after it
has explained the situation to the trade union or all of its staff and workers
30 days in advance, solicited opinions from them and reported to the labour administrative department.
Where the employing unit is
to recruit personnel six months after the personnel reduction effected
according to the stipulations of this section, the reduced personnel shall have
the priority to be re-employed.
Section
28. The employing
unit shall make economic compensations in accordance with the relevant
provisions of the State if it revokes its labour
contracts according to the stipulations in section 24, section 26 and section
27 of this Law.
Section
29. The employing
unit shall not revoke its labour contract with a labourer in accordance with the stipulations in section 26
and section 27 of this Law in any of the following circumstances:
· (1) to be confirmed to have totally or
partially lost the ability to work due to occupational diseases or injuries
suffered at work;
· (2) to be receiving medical treatment for
diseases or injuries within the prescribed period of time;
· (3) to be a female staff member or worker
during pregnant, puerperal, or breast-feeding period; or
· (4) other
circumstances stipulated by laws, administrative rules and regulations.
Section
30. The trade
union of an employing unit shall have the right to air its opinions if it
regards as inappropriate the revocation of a labour
contract by the unit. If the employing unit violates laws, rules and
regulations or labour contracts, the trade union
shall have the right to request for reconsideration. Where the labourer applies for arbitration or brings in a lawsuit,
the trade union shall render him support and assistance in accordance with the
law.
Section
31. A labourer who intends to revoke his labour
contract shall give a written notice to the employing unit 30 days in advance.
Section
32. A labourer may notify at any time the employing unit of his
decision to revoke the labour contract in any of the
following circumstances:
· (1) within the probation period;
· (2) where the employing unit forces the labourer to work by resorting to violence, intimidation or
illegal restriction of personal freedom; or
· (3) failure on
the part of the employing unit to pay labour
remuneration or to provide working conditions as agreed upon in the labour contract.
Section
33. The staff and
workers of an enterprise as one party may conclude a collective contract with
the enterprise on matters relating to labour
remuneration, working hours, rest and vacations, occupational safety and
health, and insurance and welfare. The draft collective contract shall be
submitted to the congress of the staff and workers or to all the staff and
workers for discussion and adoption.
A collective contract shall
be concluded by the trade union on behalf of the staff and workers with the
enterprise; in enterprise where the trade union has not yet been set up, such
contract shall be also concluded by the representatives elected by the staff
and workers with the enterprise.
Section
34. A collective
contract shall be submitted to the labour
administrative department after its conclusion. The collective contract shall
go into effect automatically if no objections are raised by the labour administrative department within 15 days from the
date of the receipt of a copy of the contract.
Section
35. Collective
contracts concluded in accordance with the law shall have binding force to both
the enterprise and all of its staff and workers. The standards on working conditions
and labour payments agreed upon in labour contracts concluded between individual labourers and the enterprise shall not be lower than those
as stipulated in collective contracts.
CHAPTER IV. WORKING HOURS, REST AND VACATIONS
Section
36. The State
shall practice a working hour system under which labourers
shall work for no more than eight hours a day and or more than 44 hours a week
on average.
Section
37. In case of labourers working on the basis of piecework, the employing
unit shall rationally fix quotas of work and standards on piecework
remuneration in accordance with the working hour system stipulated in section
36 of this Law.
Section
38. The employing
unit shall guarantee that its staff and workers have at least one day off in a
week.
Section
39. Where an
enterprise cannot follow the stipulations in section 36 and section 38 of this
Law due to its special production nature, it may adopt other rules on working
hours and rest with the approval of the labour
administrative department.
Section
40. The employing
unit shall arrange holidays for labourers in
accordance with the law during the following festivals:
· (1) the New Year's Day;
· (2) the Spring Festival;
· (3) the International Labour
Day;
· (4) the National Day; and
· (5) other holidays
stipulated by laws and regulations.
Section
41. The employing
unit may extend working hours due to the requirements of its production or
business after consultation with the trade union and labourers,
but the extended working hour for a day shall generally not exceed one hour; if
such extension is called for due to special reasons, the extended hours shall
not exceed three hours a day under the condition that the health of labourers is guaranteed. However, the total extension in a
month shall not exceed 36 hours.
Section
42. The extension of working hours shall not
be subject to restriction of the provisions of section 41 of this Law under any
of the following circumstances:
· (1) where emergent dealing is needed in
the event of natural disaster, accident or other reason that threatens the
life, health and the safety of property of labourers;
· (2) where prompt rush repair is needed in
the event of breakdown of production equipment, transportation, lines or public
facilities that affects production and public interests; and
· (3) other
circumstances as stipulated by laws, administrative rules and regulations.
Section
43. The employing
unit shall not extend working hours of labourers in
violation of the provisions of this Law.
Section
44. The employing
unit shall, according to the following standards, pay labourers
remunerations higher than those for normal working hours under any of the
following circumstances;
· (1) to pay no less than 150 per cent of
the normal wages if the extension of working hours is arranged;
· (2) to pay no less than 200 per cent of
the normal wages if the extended hours are arranged on days of rest and no
deferred rest can be taken; and
· (3) to pay no
less than 300 per cent of the normal wages if the extended hours are arranged
on statutory holidays.
Section
45. The State
shall practice a system of annual vacation with pay.
Labourers who have kept working for one year and
more shall be entitled to annual vacation with pay. The concrete measures shall
be formulated by the State Council.
Section
46. The
distribution of wages shall follow the principle of distribution according to
work and equal pay for equal work.
The level of wages shall be
gradually raised on the basis of economic development. The State shall exercise
macro-regulations and control over the total wages.
Section
47. The employing
unit shall independently determine its form of wage distribution and wage level
for its own unit according to law and based on the characteristics of its production
and business and economic results.
Section
48. The State shall implement a system of
guaranteed minimum wages. Specific standards on minimum wages shall be
determined by the people's governments of provinces, autonomous regions or
municipalities directly under the Central Government and reported to the State
Council for the record.
Wages paid to labourers by the employing unit shall not be lower than the
local standards on minimum wages.
Section
49. The
determination and readjustment of the standards on minimum wages shall be made
with reference to the following factors in a comprehensive manner:
· (1) the lowest living expenses of labourers themselves and the average family members they
support;
· (2) the average wage level of the society
as a whole;
· (3) labour
productivity;
· (4) the situation of employment; and
· (5) the different
levels of economic development between regions.
Section
50. Wages shall be
paid monthly to labourers themselves in form of
currency. The wages paid to labourers shall not be
deducted or delayed without justification.
Section
51. The employing
unit shall pay wages to labourers who observe
statutory holidays, take leaves during the periods of marriage or funeral, or
participate in social activities in accordance with the law.
CHAPTER VI. OCCUPATIONAL SAFETY AND HEALTH
Section
52. The employing
unit must establish and perfect the system for occupational safety and health,
strictly implement the rules and standards of the State on occupational safety
and health, educate labourers on occupational safety
and health, prevent accidents in the process of work, and reduce occupational
hazards.
Section
53. Facilities of
occupational safety and health must meet the standards stipulated by the State.
Facilities of occupational
safety and health installed in new projects and projects to be rebuilt or
expanded must be designed, constructed and put into operation and use at the
same time as the main projects.
Section
54. The employing
unit must provide labourers with occupational safety
and health conditions conforming to the provisions of the State and necessary
articles of labour protection, and provide regular
health examination for labourers engaged in work with
occupational hazards.
Section
55. Labourers to be engaged in specialized operations must
receive specialized training and acquire qualifications for such special
operations.
Section
56. Labourers must strictly abide by rules of safe operation in
the process of their work.
Labourers shall have the right to refuse to operate
if the management personnel of the employing unit command the operation in
violation of rules and regulations or force labourers
to run risks in operation; labourers shall have the
right to criticize, report or file charges against the acts endangering the
safety of their life and health.
Section
57. The State
shall establish a system for the statistics, reports and dispositions of
accidents of injuries and deaths, and cases of occupational diseases. The labour administrative departments and other relevant
departments of the people's governments at or above the county level and the
employing unit shall, according to law, compile statistics, report and dispose
of accidents of injuries and deaths that occurred in the process of their work
and cases of occupational diseases.
CHAPTER VII. SPECIAL PROTECTION FOR FEMALE AND JUVENILE WORKERS
Section
58. The State
shall provide female workers and juvenile workers with special protection.
"Juvenile workers"
hereby refer to labourers at the age of 16 but not 18
yet.
Section
59. It is
prohibited to arrange female workers to engage in work down the pit of mines,
or work with Grade IV physical labour intensity as
stipulated by the State, or other work that female workers should avoid.
Section
60. Female workers during their menstrual
period shall not be arranged to engage in work high above the ground, under low
temperature, or in cold water or work with Grade III physical labour intensity as stipulated by the State.
Section
61. Female workers
during their pregnancy shall not be arranged to engage in work with Grade III
physical labour intensity as stipulated by the State
or other work that they should avoid in pregnancy. Female workers pregnant for
seven months or more shall not be arranged to extend their working hours or to
work night shifts.
Section
62. After
childbirth, female workers shall be entitled to no less than 90 days of
maternity leaves with pay.
Section
63. Female workers during the period of
breast-feeding their babies less than one year old shall not be arranged to
engage in work with Grade III physical labour
intensity as stipulated by the State or other labour
that they should avoid during their breast-feeding period, or to extend their
working hours or to work night shifts.
Section
64. No juvenile
workers shall be arranged to engage in work down the pit of mines, work that is
poisonous or harmful, work with Grade IV physical labour
intensity as stipulated by the State, or other work that they should avoid.
Section
65. The employing
unit shall provide regular physical examinations to juvenile workers.
CHAPTER VIII. VOCATIONAL TRAINING
Section
66. The State
shall take various measures through various channels to expand vocational
training undertakings so as to develop professional skills of labourers, improve their qualities, and raise their
employment capability and work ability.
Section
67. People's
governments at various levels shall incorporate the development of vocational
training in the plans of social and economic development, encourage and support
all enterprises, institutional organizations, societies and individuals, where
conditions permit, to sponsor all kinds of vocational training.
Section
68. The employing
unit shall establish a system for vocational training, raise and use funds for
vocational training in accordance with the provisions of the State, and provide
labourers with vocational training in a planned way
and in the light of the actual situation of the unit.
Labourers to be engaged in technical work must
receive pre-job training before taking up their posts.
Section
69. The State
shall determine occupational classification, set up professional skill
standards for the occupations classified, and practise
a system of vocational qualification certificates. Examination and verification
organizations authorized by the Government are in charge of the examination and
verification of the professional skills of labourers.
CHAPTER IX. SOCIAL INSURANCE AND WELFARE
Section
70. The State
shall develop social insurance undertakings, establish a social insurance
system, and set up social insurance funds so that labourers
may receive assistance and compensations under such circumstances as old age,
illness, work-related injury, unemployment and child bearing.
Section
71. The level of
social insurance shall be in proportion to the level of social and economic
development and the social affordability.
Section
72. The sources of
social insurance funds shall be determined according to the categories of
insurance, and an overall pooling of insurance funds from the society shall be
introduced step by step. The employing unit and labourers
must participate in social insurance and pay social insurance premiums in
accordance with the law.
Section
73. Labourers shall, in accordance with the law, enjoy social
insurance benefits under the following circumstances:
· (1) retirement;
· (2) illness or injury;
· (3) disability caused by work-related
injury or occupational disease;
· (4) unemployment; and
· (5) child
bearing.
The survivors of the insured
labourers shall be entitled to subsidies for
survivors in accordance with the law.
The conditions and standards
for labourers to enjoy social insurance benefits
shall be stipulated by laws, rules and regulations.
The social insurance amount
that labourers are entitled to must be timely paid in
full.
Section
74. The agencies
in charge of social insurance funds shall collect, expend, manage and operate
the funds in accordance with the stipulations of laws, and assume the
responsibility to maintain and raise the value of those funds.
The supervisory
organizations of social insurance funds shall exercise supervision over the
revenue and expenditure, management and operation of social insurance funds in
accordance with the stipulations of laws.
The establishment and
function of the agencies in charge of social insurance funds and the
supervisory organizations of social insurance funds shall be stipulated by
laws.
No organization or
individual shall be allowed to misappropriate social insurance funds.
Section
75. The State
shall encourage the employing unit to up supplementary insurance for labourers according to its practical situations.
The State shall advocate
that labourers practise
individual insurance in form of saving account.
Section
76. The State
shall develop social welfare undertakings, construct public welfare facilities,
and provide labourers with conditions for taking
rest, recuperation and rehabilitation.
The employing unit shall
create conditions so as to improve collective welfare and raise welfare
treatment of labourers.
Section
77. Where a labour dispute between the employing unit and labourers takes place, the parties concerned may apply for
mediation or arbitration or take legal proceedings according to law, or may
seek for a settlement through consultation. The principle of mediation shall
apply to the procedures of arbitration and lawsuit.
Section
78. The settlement
of a labour dispute shall follow the principle of
legality, fairness and promptness to so as to safeguard in accordance with the
law the legitimate rights and interests of the parties involved.
Section
79. Where a labour dispute takes place, the parties involved may apply
to the labour dispute mediation committee of their
unit for mediation; if the mediation falls and one of the parties requests for
arbitration, that party may apply to the labour
dispute arbitration committee for arbitration. If one of the parties is not
satisfied with the adjudication of arbitration, the party may bring the case to
a people's court.
Section
80. A labour dispute mediation committee may be established
inside the employing unit. The committee shall be composed of representatives
of the staff and workers, representatives of the employing unit, and
representatives of the trade union. The chairman of the committee shall be held
by a representative of the trade union.
Agreements reached on labour disputes through mediation shall be implemented by
the parties involved.
Section
81. A labour dispute arbitration committee shall be composed of
representatives of the labour administrative
department, representatives from the trade union at the corresponding level,
and representatives of the employing unit. The chairman of the committee shall
be held by a representative of the labour
administrative department.
Section
82. The party that
requests for arbitration shall file a written application to a labour dispute arbitration committee within 60 days
starting from the date of the occurrence of a labour
dispute. The arbitration committee may generally make an
adjudication within 60 days from the date of receiving the application.
The parties involved must implement the adjudication if no objections are
raised.
Section
83. Where a party
involved in a labour dispute is not satisfied with
the adjudication, the party may bring a lawsuit to a people's court within 15
days from the date of receiving the ruling of arbitration. Where one of the
parties involved neither brings a lawsuit nor implements the adjudication of
arbitration within the statutory time limit, the other party may apply to a
people's court for compulsory implementation.
Section
84. Where a dispute arises from the conclusion
of a collective contract and no settlement can be reached through consultation
by the parties concerned, the labour administrative
department of the local people's government may organize the relevant
departments to handle the case in coordination.
Where a dispute arises from
the implementation of a collective contract and no settlement can be reached
through consultation by the parties concerned, the dispute may be submitted to
the labour dispute arbitration committee for
arbitration. Any party that is not satisfied with the adjudication of
arbitration may bring a lawsuit to a people's court within 15 days from the
date of receiving the adjudication.
CHAPTER XI. SUPERVISION AND INSPECTION
Section
85. The labour administrative departments of people's governments
at or above the county level shall, in accordance with the law, supervise and
inspect the implementation of laws, rules and regulations on labour by the employing unit, and have the power to stop
any acts that run counter to laws, rules and regulations on labour
and order the rectification thereof.
Section 86. The inspectors from the labour administrative departments of people's governments
at or above the county level shall, while performing their public duties, have
the right to enter the employing units to make investigations about the
implementation of laws, rules and regulations on labour,
examine necessary date and inspect labour sites.
The inspectors from the labour administrative departments of people's governments
at or above the county level must show their certifications while performing
public duties, impartially enforce laws, and abide by relevant stipulations.
Section
87. Relevant
departments of people's governments at or above the county level shall, within
the scope of their respective duties and responsibilities, supervise the
implementation of laws, rules and regulations on labour
by the employing units.
Section
88. Trade union at various levels shall, in
accordance with the law, safeguard he legitimate rights and interests of labourers, and supervise the implementation of laws, rules
and regulations on labour by the employing units.
Any organizations or
individuals shall have the right to expose and accuse any acts in violation of
laws, rules and regulations on labour.
CHAPTER XII. LEGAL RESPONSIBILITY
Section
89. Where the rules and regulations on labour formulated by the employing unit run counter to the
provisions of laws, rules and regulations, the labour
administrative department shall give a warning to the unit, order it to make
corrections; where any harms have been caused to labourers,
the unit shall be liable for compensations.
Section 90.