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Adopted at the 28th Session of the Standing Committee of the 10th National
People's Congress on June 29, 2007
Effective from January 1, 2008
CHAPTER 1 GENERAL PROVISIONS
Article 1
This Law has been formulated in order to improve the employment contract
system, to specify the rights and obligations of the parties to employment
contracts, to protect the lawful rights and interests of Employees and to build
and develop harmonious and stable employment relationships.
Article
2
This Law governs the establishment of employment relationships between,
and the conclusion, performance, amendment, termination and ending of employment
contracts by, organizations such as enterprises, individual economic
organizations and private non-enterprise units in the People’s Republic of China
(“Employers”) on the one hand and Employees in the People’s Republic of China on
the other hand.
The conclusion, performance, amendment, termination and
ending of employment contracts by state authorities, institutions or social
organizations on the one hand and Employees with whom they establish employment
relationships on the other hand, shall be handled pursuant to this
Law.
Article 3
The conclusion of employment contracts shall comply
with the principles of lawfulness, fairness, equality, free will, negotiated
consensus and good faith.
A lawfully concluded employment contract is
binding, and both the Employer and the Employee shall perform their respective
obligations stipulated therein.
Article 4
Employers shall
establish and improve internal rules and regulations, so as to ensure that
Employees enjoy their labor rights and perform their labor obligations.
When an Employer formulates, revises or decides on rules and regulations,
or material matters, that have a direct bearing on the immediate interests of
its Employees, such as those concerning compensation, work hours, rest, leave,
work safety and hygiene, insurance, benefits, employee training, work discipline
or work quota management, the same shall be discussed by the employee
representative congress or all the employees. The employee representative
congress or all the employees, as the case may be, shall put forward a proposal
and comments, whereupon the matter shall be determined through consultations
with the Trade union or employee representatives conducted on a basis of
equality.
If, during the implementation of an Employer’s rule or
regulation or decision on a crucial matter, the Trade union or an employee is of
the opinion that the same is inappropriate, it or he is entitled to communicate
such opinion to the Employer, and the rule, regulation or decision shall be
improved by making amendments after consultations.
Rules and regulations,
and decisions on material matters, that have a direct bearing on the immediate
interests of Employees shall be made public or be communicated to the Employees
by the Employer.
Article 5
The labor administration authorities
of People’s Governments at the county level and above, together with the Trade
union and enterprise representatives, shall establish a comprehensive
tri-partite mechanism for the coordination of employment relationships, in order
to jointly study and resolve major issues concerning employment relationships.
Article 6
A Trade union shall assist and guide Employees in the
conclusion of employment contracts with their Employer and the performance
thereof in accordance with the law, and establish a collective bargaining
mechanism with the Employer in order to safeguard the lawful rights and
interests of Employees.
CHAPTER 2 CONCLUSION OF EMPLOYMENT
CONTRACTS
Article 7
An Employer’s employment relationship
with a Employee is established on the date it starts using the Employee. An
Employer shall keep a register of employees, for reference purposes.
Article 8
When an Employer hires a Employee, it shall truthfully
inform him as to the content of the work, the working conditions, the place of
work, occupational hazards, production safety conditions, labor compensation and
other matters which the Employee requests to be informed about. The Employer has
the right to learn from the Employee basic information which directly relates to
the employment contract, and the Employee shall truthfully provide the same.
Article 9
When hiring a Employee, an Employer may not retain the
Employee’s resident ID card or other papers, nor may it require him to provide
security or collect property from him under some other guise.
Article
10
To establish an employment relationship, a written employment contract
shall be concluded.
In the event that no written employment contract was
concluded at the time of establishment of an employment relationship, a written
employment contract shall be concluded within one month after the date on which
the Employer starts using the Employee.
Where an Employer and a Employee
conclude an employment contract before the Employer starts using the Employee,
the employment relationship shall be established on the date on which the
Employer starts using the Employee.
Article 11
In the event that an
Employer fails to conclude a written employment contract with a Employee at the
time its starts to use him, and it is not clear what labor compensation was
agreed upon with the Employee, the labor compensation of the new Employee shall
be decided pursuant to the rate specified in the collective contract; where
there is no collective contract or the collective contract is silent on the
matter, equal pay shall be given for equal work.
Article
12
Employment contracts are divided into fixed-term employment contracts,
open-ended employment contracts and employment contracts to expire upon
completion of a certain job.
Article 13
A“fixed-term employment
contract”is an employment contract whose ending date is agreed upon by the
Employer and the Employee.
An Employer and a Employee may conclude a
fixed-term employment contract upon reaching a negotiated consensus.
Article 14
An“open-ended employment contract”is an employment
contract for which the Employer and the Employee have agreed not to stipulate a
definite ending date.
An Employer and a Employee may conclude an
open-ended employment contract upon reaching a negotiated consensus. If a
Employee proposes or agrees to renew his employment contract or to conclude an
employment contract in any of the following circumstances, an open-ended
employment contract shall be concluded, unless the Employee requests the
conclusion of a fixed-term employment contract:
(1) The Employee has been
working for the Employer for a consecutive period of not less than 10 years;
(2) when his Employer introduces the employment contract system or the
state owned enterprise that employs him re-concludes its employment contracts as
a result of restructuring, the Employee has been working for the Employer for a
consecutive period of not less than 10 years and is less than 10 years away from
his legal retirement age; or
(3) prior to the renewal, a fixed-term
employment contract was concluded on two consecutive occasions and the Employee
is not characterized by any of the circumstances set forth in Article 39 and
items (1) and (2) of Article 40 hereof.
If an Employer fails to conclude a
written employment contract with a Employee within one year from the date on
which it starts using the Employee, the Employer and the Employee shall be
deemed to have concluded an open-ended employment contract.
Article
15
An“employment contract with a term to expire upon completion of a
certain job”is an employment contract in which the Employer and the Employee
have agreed that the completion of a certain job is the term of the contract.
An Employer and a Employee may, upon reaching a negotiated consensus,
conclude an employment contract with a term to expire upon completion of a
certain job.
Article 16
An employment contract shall become effective
when the Employer and the Employee have reached a negotiated consensus thereon
and each of them has signed or sealed the text of such contract.
The
Employer and the Employee shall each hold one copy of the employment contract.
Article 17
An employment contract shall specify the following
matters:
(1) The name, domicile and legal representative or main person in
charge of the Employer;
(2) The name, domicile and number of the resident
ID card or other valid identity document of the Employee;
(3) The term of
the employment contract;
(4) The job des cription and the place of work;
(5) Working hours, rest and leave;
(6) Labor compensation;
(7)
Social insurance;
(8) Labor protection, working conditions and protection
against occupational hazards; and
(9) Other matters which laws and
statutes require to be included in employment contracts.
In addition to
the requisite terms mentioned above, an Employer and a Employee may agree to
stipulate other matters in the employment contract, such as probation period,
training, confidentiality, supplementary insurance and benefits, etc.
Article 18
If a dispute arises due to the fact that the rate or
standards for labor compensation or working conditions, etc. are not explicitly
specified in the employment contract, the Employer and the Employee may
renegotiate. If the negotiations are unsuccessful, the provisions of the
collective contract shall apply. If there is no collective contract or the
collective contract is silent on the issue of labor compensation, equal pay
shall be given for equal work; if there is no collective contract or the
collective contract is silent on the issue of working conditions, the relevant
regulations of the state shall apply.
Article 19
If an employment
contract has a term of not less than three months but less than one year, the
probation period may not exceed one month; if an employment contract has a term
of more than one year and less than three years, the probation period may not
exceed two months; and if an employment contract has a term of not less than
three years or is open-ended, the probation period may not exceed six months.
An Employer may stipulate only one probation period with any given
Employee.
No probation period may be specified in an employment contract
with a term to expire upon completion of a certain job or an employment contract
with a term of less than three months.
The probation period shall be
included in the term of the employment contract. If an employment contract
provides for a probation period only, then there is no probation period and the
term concerned shall be the term of the employment contract.
Article
20
The wages of a Employee on probation may not be less than the lowest
wage level for the same job with the Employer or less than 80 percent of the
wage agreed upon in the employment contract, and may not be less than the
minimum wage rate in the place where the Employer is located.
Article
21
An Employer may not terminate an employment contract during the
probation period unless the Employee is characterized by any of the
circumstances set forth in Article 39 and items (1) and (2) of Article 40
hereof. If an Employer terminates an employment contract during the probation
period, it shall explain the reasons to the Employee.
Article 22
If
an Employer provides special funding for a Employee’s training and gives him
professional technical training, it may conclude an agreement specifying a term
of service with such Employee.
If the Employee breaches the agreement on
the term of service, he shall pay liquidated damages to the Employer as agreed.
The measure of the liquidated damages may not exceed the training expenses paid
by the Employer. The liquidated damages that the Employer requires the Employee
to pay may not exceed the portion of the training expenses allocable to the
unperformed portion of the term of service.
The reaching of agreement on a
term of service between the Employer and the Employee does not affect the
raising of the Employee’s labor compensation during the term of service
according to the normal wage adjustment mechanism.
Article 23
An
Employer and a Employee may include in their employment contract provisions on
confidentiality matters relating to maintaining the confidentiality of the trade
secrets of the Employer and to intellectual property.
If a Employee has a
confidentiality obligation, the Employer may agree with the Employee on
competition restriction provisions in the employment contract or confidentiality
agreement, and stipulate that the Employer shall pay financial compensation to
the Employee on a monthly basis during the term of the competition restriction
after the termination or ending of the employment contract. If the Employee
breaches the competition restriction provisions, he shall pay liquidated damages
to the Employer as stipulated.
Article 24
The personnel subject to
competition restrictions shall be limited to the Employer’s senior management,
senior technicians and other personnel with a confidentiality obligation. The
scope, territory and term of the competition restrictions shall be agreed upon
by the Employer and the Employee, and such agreement shall not violate laws and
regulations.
The term, counted from the termination or ending of the
employment contract, for which a person as mentioned in the preceding paragraph
is subject to competition restrictions in terms of his working for a competing
Employer that produces the same type of products or is engaged in the same type
of business as his current Employer, or in terms of his establishing his own
business to produce the same type of products or engage in the same type of
business, shall not exceed two years.
Article 25
With the exception
of the circumstances specified in Articles 22 and 23 hereof, an Employer may not
stipulate with a Employee provisions on the bearing of liquidated damages by the
Employee.
Article 26
An employment contract shall be invalid or
partially invalid if:
(1) A party uses such means as deception or
coercion, or takes advantage of the other party’s difficulties, to cause the
other party to conclude an employment contract, or to make an amendment thereto,
that is contrary to that party’s true intent;
(2) The Employer disclaims
its legal liability or denies the Employee his rights; or
(3) Mandatory
provisions of laws or administrative statutes are violated.
If the
invalidity or partial invalidity of the employment contract is disputed, it
shall be confirmed by a labor dispute arbitration institution or a People’s
Court.
Article 27
If certain provisions of an employment contract are
invalid and such invalidity does not affect the validity of the remaining
provisions, the remaining provisions shall remain valid.
Article
28
If an employment contract is confirmed as invalid and the Employee has
already performed labor, the Employer shall pay the Employee labor compensation.
The amount of labor compensation shall be determined with reference to the labor
compensation of Employees in the same or a similar position with the Employer.
CHAPTER 3 PERFORMANCE AND AMENDMENT OF EMPLOYMENT
CONTRACTS
Article 29
The Employer and the Employee shall each
fully perform its/his obligations in accordance with the employment contract.
Article 30
Employers shall pay their Employees labor compensation on
time and in full in accordance with the employment contracts and state
regulations.
If an Employer falls into arrears with the payment of labor
compensation or fails to make payment in full, the Employee may, in accordance
with the law, apply to the local People’s
Court for an order to pay; and
the People’s Court shall issue such order in accordance with the law.
Article 31
Employers shall strictly implement the work quota
standards and may not compel or in a disguised manner compel Employees to work
overtime. If an Employer arranges for a Employee to work overtime, it shall pay
him overtime pay in accordance with the relevant state regulations.
Article
32
Employees shall not be held in breach of their employment contracts if
they refuse to perform dangerous operations that are instructed in violation of
regulations or peremptorily ordered by management staff of the Employer.
Employees have the right to criticize, report to the authorities or lodge
accusations against their Employers in respect of working conditions that
endanger their lives or health.
Article 33
Changes such a change in
the name, legal representative or main person in charge of, or an (the)
investor(s) in, an Employer shall not affect the performance of its employment
contracts.
Article 34
If an Employer is merged or divided, etc., its
existing employment contracts shall remain valid and continue to be performed by
the Employer(s) which succeeded to its rights and obligations
Article
35
An Employer and a Employee may amend the provisions of their employment
contract if they so agree after consultations. Amendments to an employment
contract shall be made in writing.
The Employer and the Employee shall
each hold one copy of the amended employment contract.
CHAPTER 4
TERMINATION AND ENDING OF EMPLOYMENT CONTRACTS
Article 36
An Employer
and a Employee may terminate their employment contract if they so agree after
consultations.
Article 37
A Employee may terminate his employment
contract upon 30 days’prior written notice to his Employer. During his probation
period, a Employee may terminate his employment contract by giving his Employer
three days’prior notice.
Article 38
A Employee may terminate his
employment contract if his Employer:
(1) Fails to provide the labor
protection or working conditions specified in the employment contract;
(2)
Fails to pay labor compensation in full and on time;
(3) Fails to pay the
social insurance premiums for the Employee in accordance with the law;
(4)
Has rules and regulations that violate laws or regulations, thereby harming the
Employee’s rights and interests;
(5) causes the employment contract to be
invalid due to a circumstance specified in the first paragraph of Article 26
hereof;
(6) Gives rise to another circumstance in which laws or
administrative statutes permit a Employee to terminate his employment contract.
If an Employer uses violence, threats or unlawful restriction of personal
freedom to compel a Employee to work, or if a Employee is instructed in
violation of rules and regulations or peremptorily ordered by his Employer to
perform dangerous operations which threaten his personal safety, the Employee
may terminate his employment contract forthwith without giving prior notice to
the Employer.
Article 39
An Employer may terminate an employment
contract if the Employee:
(1) Is proved during the probation period not to
satisfy the conditions for employment;
(2) Materially breaches the
Employer’s rules and regulations;
(3) Commits serious dereliction of duty
or practices graft, causing substantial damage to the Employer;
(4) has
additionally established an employment relationship with another Employer which
materially affects the completion of his tasks with the first-mentioned
Employer, or he refuses to rectify the matter after the same is brought to his
attention by the Employer;
(5) causes the employment contract to be
invalid due to the circumstance specified in item (1) of the first paragraph of
Article 26 hereof; or
(6) Has his criminal liability pursued in accordance
with the law.
Article 40
An Employer may terminate an employment
contract by giving the Employee himself 30 days’prior written notice, or one
month’s wage in lieu of notice, if:
(1) after the set period of medical
care for an illness or non-work-related injury, the Employee can engage neither
in his original work nor in other work arranged for him by his Employer;
(2) The Employee is incompetent and remains incompetent after training or
adjustment of his position; or
(3) A major change in the objective
circumstances relied upon at the time of conclusion of the employment contract
renders it unperformable and, after consultations, the Employer and Employee are
unable to reach agreement on amending the employment contract.
Article
41
If any of the following circumstances makes it necessary to reduce the
workforce by 20 persons or more or by a number of persons that is less than 20
but accounts for 10 percent or more of the total number of the enterprise’s
employees, the Employer may reduce the workforce after it has explained the
circumstances to its Trade union or to all of its employees 30 days in advance,
has considered the opinions of the Trade union or the employees and has
subsequently reported the workforce reduction plan to the labor administration
department:
(1) Restructuring pursuant to the Enterprise Bankruptcy Law;
(2) Serious difficulties in production and/or business
operations;
(3) The enterprise switches production, introduces a major
technological innovation or revises its business method, and, after amendment of
employment contracts, still needs to reduce its workforce; or
(4) Another
major change in the objective economic circumstances relied upon at the time of
conclusion of the employment contracts, rendering them unperformable.
When
reducing the workforce, the Employer shall retain with priority persons:
(1) Who have concluded with the Employer fixed-term employment contracts
with a relatively long term;
(2) Who have concluded open-ended employment
contracts with the Employer; or
(3) Who are the only ones in their
families to be employed and whose families have an elderly person or a minor for
whom they need to provide.
If an Employer that has reduced its workforce
pursuant to the first paragraph hereof hires again within six months, it shall
give notice to the persons dismissed at the time of the reduction and, all
things being equal, hire them on a preferential basis.
Article 42
An
Employer may not terminate an employment contract pursuant to Article
40
or Article 41 hereof if the Employee:
(1) is engaged in operations
exposing him to occupational disease hazards and has not undergone a
pre-departure occupational health check-up, or is suspected of having contracted
an occupational disease and is being diagnosed or under medical observation;
(2) Has been confirmed as having lost or partially lost his capacity to
work due to an occupational disease contracted or a work-related injury
sustained with the Employer;
(3) Has contracted an illness or sustained a
non-work-related injury, and the set period of medical care therefore has not
expired;
(4) Is a female employee in her pregnancy, confinement or nursing
period;
(5) Has been working for the Employer continuously for not less
than 15 years and is less than 5 years away from his legal retirement age;
(6) Finds himself in other circumstances stipulated in laws or
administrative statutes.
Article 43
When an Employer is to terminate
an employment contract unilaterally, it shall give the Trade union advance
notice of the reason therefore. If the Employer violates laws, administrative
statutes or the employment contract, the Trade union has the right to demand
that the Employer rectify the matter. The Employer shall study the Trade union’s
opinions and notify the Trade union in writing as to the outcome of its handling
of the matter.
Article 44
An employment contract shall end if:
(1) Its term expires;
(2) The Employee has commenced drawing his
basic old age insurance pension in accordance with the law;
(3) The
Employee dies, or is declared dead or missing by a People’s Court;
(4) The
Employer is declared bankrupt;
(5) The Employer has its business license
revoked, is ordered to close or is closed down, or the Employer decides on early
liquidation; or
(6) Another circumstance specified in laws or
administrative statutes arises.
Article 45
If an employment contract
expires and any of the circumstances specified in
Article 42 hereof
applies, the term of the employment contract shall be extended until the
relevant circumstance ceases to exist, at which point the contract shall end.
However, matters relating to the ending of the employment contract of a Employee
who has lost or partially lost his capacity to work as specified in item (2) of
Article 42 hereof shall be handled in accordance with state regulations on
work-related injury insurance.
Article 46
In any of the following
circumstances, the Employer shall pay the Employee severance pay:
(1) The
employment contract is terminated by the Employee pursuant to Article 38 hereof;
(2) The employment contract is terminated after such termination was
proposed to the Employee by the Employer pursuant to Article 36 hereof and the
parties reached agreement thereon after consultations;
(3) The employment
contract is terminated by the Employer pursuant to Article 40 hereof;
(4)
The employment contract is terminated by the Employer pursuant to the first
paragraph of Article 41 hereof;
(5) The employment contract is a
fixed–term contract that ends pursuant to item (1) of
Article 44 hereof,
unless the Employee does not agree to renew the contract even though the
conditions offered by the Employer are the same as or better than those
stipulated in the current contract;
(6) The employment contract ends
pursuant to item (4) or (5) of Article 44 hereof;
(7) Other circumstances
specified in laws or administrative statutes.
Article 47
A Employee
shall be paid severance pay based on the number of years worked with the
Employer at the rate of one month’s wage for each full year worked. Any period
of not less than six months but less than one year shall be counted as one year.
The severance pay payable to a Employee for any period of less than six months
shall be one-half of his monthly wages.
If the monthly wage of a Employee
is greater than three times the average monthly wage of employees in the
Employer’s area as published by the People’s Government at the level of
municipality directly under the central government or municipality divided into
districts of the area1 where the Employer is located, the rate for the severance
pay paid to him shall be three times the average monthly wage of employees and
shall be for not more than 12 years of work.
For the purposes of this
Article, the term“monthly wage”means the Employee’s average monthly wage for the
12 months prior to the termination or ending of his employment contract.
Article 48
If an Employer terminates or ends an employment contract
in violation of this
Law and the Employee demands continued performance of
such contract, the Employer shall continue performing the same. If the Employee
does not demand continued performance of the employment contract or if continued
performance of the employment contract has become impossible, the Employer shall
pay damages pursuant to Article 87 hereof.
Article 49
The state will
take measures to establish a comprehensive system that enables Employees’social
insurance accounts to be transferred from one region to another and to be
continued in such other region.
Article 50
At the time of termination
or ending of an employment contract, the Employer shall issue a proof of
termination or ending of the employment contract and, within 15 days, carry out
the procedures for the transfer of the Employee’s file and social insurance
account.
The Employee shall carry out the procedures for the handover of
his work as agreed by the parties. If relevant provisions of this Law require
the Employer to pay severance pay, it shall pay the same upon completion of the
procedures for the handover of the work.
The Employer shall keep
terminated or ended employment contracts on file for not less than two years,
for reference purposes.
CHAPTER 5 SPECIAL PROVISIONS
SECTION 1 COLLECTIVE CONTRACT
Article 51
After bargaining on an equal basis, enterprise employees,
as one party, and their Employer may conclude a collective contract on such
matters as labor compensation, working hours, rest, leave, work safety and
hygiene, insurance, benefits, etc. The draft of the collective contract shall be
presented to the employee representative congress or all the employees for
discussion and approval.
A collective contract shall be concluded by the
Trade union, on behalf of the enterprise’s employees, and the Employer. If the
Employer does not yet have a Trade union, it shall
1 Translator’s note:
The phrase“of the area”does not appear in the Chinese text. It has been added by
us in view of the context.
Conclude the collective contract with a
representative put forward by the Employees under the guidance of the Trade
union at the next higher level.
Article 52
Enterprise employees, as
one party, and their Employer may enter into specialized collective contracts
addressing labor safety and hygiene, protection of the rights and interests of
female employees, the wage adjustment mechanism, etc.
Article
53
Industry-wide or area-wide collective contracts may be concluded between
the Trade union on the one hand and representatives on the side of the
enterprises on the other hand in industries such as construction, mining,
catering services, etc. within areas below the county level.
Article
54
After a collective contract has been concluded, it shall be submitted to
the labor administration authority. The collective contract shall become
effective upon the lapse of 15 days from the date of receipt thereof by the
labor administration authority, unless the said authority raises any objections
to the contract.
A collective contract that has been concluded in
accordance with the law is binding on the Employer and the Employees. An
industry-wide or area-wide collective contract is binding on Employers and
Employees in the industry or in the area in the locality concerned.
Article 55
The rates for labor compensation, standards for working
conditions, etc. stipulated in a collective contract may not be lower than the
minimum rates and standards prescribed by the local People’s Government. The
rates for labor compensation, standards for working conditions, etc. stipulated
in the employment contract between an Employer and a Employee may not be lower
than those stipulated in the collective contract.
Article 56
If an
Employer’s breach of the collective contract infringes upon the labor rights and
interests of the employees, the Trade union may, in accordance with the law,
demand that the Employer assume liability. If a dispute arising from the
performance of the collective contract is not resolved following consultations,
the Trade union may apply for arbitration and institute an action according to
law.
SECTION 2 Placement
Article 57
Staffing firms shall be established in accordance with the
relevant provisions
of the Company Law and have registered capital of not
less than RMB￥500,000.
Article 58
Staffing firms are Employers as
mentioned in this Law and shall perform an Employer’s obligations toward its
Employees. The employment contract between a staffing firm and a Employee to be
placed shall, in addition to the matters specified in Article 17 hereof, specify
matters such as the unit with which the Employee will be placed, the term of his
placement, his position, etc.
The employment contracts between staffing
firms and the Employees to be placed shall be fixed term employment contracts
with a term of not less than two years. Staffing firms shall pay labor
compensation on a monthly basis. During periods when there is no work for
Employees to be placed, the staffing firm shall pay such Employees compensation
on a monthly basis at the minimum wage rate prescribed by the People’s
Government of the place where the staffing firm is located.
Article
59
When placing Employees, staffing firms shall enter into staffing
agreements with the units that accept the Employees under the placement
arrangements (“Accepting Units”). The staffing agreements shall stipulate the
job positions in which Employees are placed, the number of persons placed, the
term of placement, the amounts and methods of payments of labor compensation and
social insurance premiums, and the liability for breach of the agreement.
An Accepting Unit shall decide with the staffing firm on the term of
placement based on the actual requirements of the job position, and it may not
conclude several short-term placement agreements to cover a continuous term of
labor use.
Article 60
Staffing firms shall inform the Employees
placed of the content of the placement agreements.
Staffing firms may not
pocket part of the labor compensation that the Accepting Units pay to the
Employees in accordance with the placement agreement.
Staffing firms and
the Accepting Units may not charge fees from the Employees placed.
Article
61
If a staffing firm places a Employee with an Accepting Unit in another
region, the Employee’s labor compensation and working conditions shall be in
line with the rates and standards of the place where the Accepting Unit is
located.
Article 62
Accepting Units shall perform the following
obligations:
(1) Implement state labor standards and provide the
corresponding working conditions and labor protection;
(2) communicate the
job requirements and labor compensation of the Employees placed;
(3) Pay
overtime pay and performance bonuses and provide benefits appropriate for the
job positions;
(4) Provide the placed Employees who are on the job with
the training necessary for their job positions; and
(5) In case of
continuous placement, implement a normal wage adjustment system.
Accepting
Units may not in turn place the Employees with other Employers.
Article
63
Placed Employees shall have the right to receive the same pay as that
received by Employees of the Accepting Unit for the same work. If an Accepting
Unit has no Employee in the same position, the labor compensation shall be
determined with reference to the labor compensation paid in the place where the
Accepting Unit is located to Employees in the same or a similar position.
Article 64
Placed Employees have the right to lawfully join the Trade
union of their staffing firm or the Accepting Unit or to organize such unions,
so as to protect their own lawful rights and interests.
Article
65
Placed Employees may terminate their employment contracts with their
staffing firms pursuant to Article 36 or 38 hereof.
If any of the
circumstances provided for in Article 39 and items (1) and (2) of Article 40
hereof applies to a placed Employee, his Accepting Unit may return him to the
staffing firm, which may terminate its employment contract with him in
accordance with the relevant provisions of this Law.
Article 66
The
placement of Employees shall generally be practiced for temporary, auxiliary or
substitute job positions.
Article 67
Employers may not establish
staffing firms to place Employees with themselves or their subordinate units.
Section 3 Part-Time Labor
Article 68
The
term“part-time labor”means a form of labor for which the compensation is chiefly
calculated by the hour and where the Employee generally averages not more than 4
hours of work per day and not more than an aggregate 24 hours of work per week
for the same Employer.
Article 69
The two parties to part-time labor
may conclude an oral agreement.
A Employee who engages in part-time labor
may conclude an employment contract with one or more Employers, but a
subsequently concluded employment contract may not prejudice the performance of
a previously concluded employment contract.
Article 70
The two
parties to part-time labor may not stipulate a probation period.
Article
71
Either of the two parties to part-time labor may terminate the use of
the labor by notice to the other party at any time. No severance pay shall be
payable by the Employer to the Employee upon termination of the use of the
labor.
Article 72
The hourly compensation rate for part-time labor
may not be lower than the minimum hourly wage rate prescribed by the People’s
Government of the place where the Employer is located.
The labor
compensation settlement and payment cycle for part-time labor may not exceed 15
days.
CHAPTER 6 MONITORING INSPECTIONS
Article 73
The
State Council’s labor administration authority shall be responsible for
overseeing the implementation of the employment contract system nationwide. The
labor administration authorities of local People’s Governments at the county
level and above shall be responsible for overseeing the implementation of the
employment contract system in their respective jurisdictions.
In the course
of overseeing the implementation of the employment contract system, the labor
administration authorities of People’s Governments at the county level and above
shall consider the opinions of the Trade unions, the representatives on the side
of the enterprises and the authorities in charge of the industries concerned.
Article 74
The labor administration authorities of local People’s
Governments at the county level and above shall conduct monitoring inspections
of the implementation of the following aspects of the employment contract
system, in accordance with the law:
(1) Employers’formulation of rules and
regulations that have a direct bearing on the immediate interests of Employees,
and the implementation thereof;
(2) The conclusion and termination of
employment contracts by Employers and Employees;
(3) Compliance with
relevant regulations on placement by staffing firms and Accepting Units;
(4) Employers’compliance with state regulations on Employees’working
hours, rest and leave;
(5) Employers’payment of labor compensation as
specified in the employment contracts and compliance with minimum wage rates;
(6) Employers’enrollment in the various types of social insurance and
payment of social insurance premiums; and
(7) Other labor matters
requiring monitoring inspections, as specified in laws and administrative
statutes.
Article 75
When the labor administration authority of a
local People’s Government at the county level or above conducts a monitoring
inspection, it has the authority to review materials relating to the employment
contracts and collective contracts and conduct an on the-spot inspection of the
work premises. Both the Employer and the Employees shall truthfully provide
relevant information and materials.
When working personnel of a labor
administration authority conduct a monitoring inspection, they shall show their
IDs, exercise their functions and powers according to law and enforce the law in
a well-disciplined manner.
Article 76
Such competent authorities as
construction authorities, health authorities, production safety regulators, etc.
of People’s Governments at the county level and above shall, to the extent of
their respective purviews, oversee the implementation of the employment contract
system by Employers.
Article 77
A Employee whose lawful rights and
interests have been infringed upon shall have the right to request that the
relevant authority deal with the infringement according to law, or to apply for
arbitration and institute an action according to law.
Article
78
Trade unions shall safeguard the lawful rights and interests of
Employees in accordance with the law and monitor the performance of the
employment contracts and collective contracts by Employers. If an Employer
violates labor laws or statutes or breaches an employment contract or collective
contract, the Trade union has the right to voice its opinion or require that the
matter be rectified. If a Employee applies for arbitration or institutes an
action, the Trade union shall provide support and assistance in accordance with
the law.
Article 79
All organizations and individuals are entitled to
report violations of this Law.
The labor administration authorities of
People’s Governments at the county level and above shall timely check and handle
the violations reported and reward those persons whose reports are valuable.
CHAPTER 7 LEGAL LIABILITY
Article 80
If an
Employer’s rule or regulation with a direct bearing on the immediate interests
of Employees violates laws or administrative statutes, the labor administration
authority shall order rectification and give a warning. If the said rule or
regulation caused a Employee to suffer harm, the Employer will be liable for
damages.
Article 81
If the text of an employment contract provided by
an Employer lacks any of the mandatory clauses which this Law requires to be
included in such contracts or if an Employer fails to deliver the text of the
employment contract to the Employee, the labor administration authority shall
order rectification; if the Employee suffered harm as a result thereof, the
Employer will be liable for damages.
Article 82
If an Employer
concludes a written employment contract with a Employee more than one month but
less than one year after the date on which it started using him, it shall each
month pay to the Employee twice his wage.
If an Employer fails, in
violation of this Law, to conclude an open-ended employment contract with a
Employee, it shall each month pay to the Employee twice his wage, starting from
the date on which an open-ended employment contract should have been concluded.
Article 83
If the probation period stipulated by an Employer with a
Employee violates this Law, the labor administration authority shall order
rectification. If the illegally stipulated probation has been performed, the
Employer shall pay compensation to the Employee according to the time worked on
probation beyond the statutory probation period, at the rate of the Employee’s
monthly wage following the completion of his probation.
Article 84
If
an Employer violates this Law by retaining a Employee’s resident ID card or
other papers, the labor administration authority shall order the same returned
to the Employee within a specified period of time and impose a penalty in
accordance with the provisions of relevant laws.
If an Employer violates
this Law by collection property from Employees as security or under some other
guise, the labor administration authority shall order the same returned to the
Employees within a specified period of time and impose a fine on the Employer of
not less than RMB￥500 and not more than RMB￥2,000 for each person; If the
Employees suffered harm as a result of the said conduct on the part of the
Employer, the Employer will be liable for damages. If an Employer retains a
Employee’s file or other Article after the Employee has terminated or ended his
employment contract in accordance with the law, a penalty shall be imposed in
accordance with the preceding paragraph.
Article 85
If an Employer:
(1) Fails to pay a Employee his labor compensation in full and on time as
stipulated in his employment contract or prescribed by the state;
(2) Pays
labor compensation below the local minimum wage rate;
(3) Arranges
overtime without paying overtime pay; or
(4) Terminates or ends an
employment contract without paying the Employee severance pay pursuant to this
Law; then the labor administration authority shall order it to pay the labor
compensation, overtime pay or severance pay within a specified period of time;
if the labor compensation is lower than the local minimum wage rate, the
Employer shall pay the shortfall. If payment is not made within the time limit,
the Employer shall be ordered to additionally pay damages to the Employee at a
rate of not less than 50 percent and not more than 100 percent of the amount
payable.
Article 86
If an employment contract is confirmed as being
invalid in accordance with Article 26 hereof and the other party suffers harm as
a result thereof, the party at fault shall be liable for damages.
Article
87
If an Employer terminates or ends an employment contract in violation of
this Law, it shall pay damages to the Employee at twice the rate of the
severance pay provided for in Article 47 hereof.
Article 88
If an
Employer:
(1) uses violence, threats or unlawful restriction of personal
freedom to compel a Employee to work;
(2) Instructs in violation of rules
and regulations, or peremptorily orders, a Employee to perform dangerous
operations which threaten his personal safety;
(3) Insults, corporally
punishes, beats, illegally searches or detains a Employee; or
(4) provides
odious working conditions or a severely polluted environment, resulting in
serious harm to the physical or mental health of Employees; it shall be
subjected to administrative punishment; if the said conduct constitutes a
criminal offense, criminal liability shall be pursued according to law; if the
Employee suffers harm as a result of the said conduct on the part of the
Employer, the Employer will be liable for damages.
Article 89
If an
Employer fails, in violation of this Law, to issue to a Employee a certificate
evidencing the termination or ending of his employment contract, the labor
administration authority shall order rectification. If the Employee suffers harm
as a result of such failure, the Employer will be liable for damages.
Article 90
If a Employee terminates his employment contract in
violation of this Law or breaches the confidentiality obligations or competition
restrictions stipulated in his employment contract, and if such violation or
breach causes his Employer to suffer loss, he will be liable for damages.
Article 91
If an Employer hires a Employee whose employment contract
with another Employer has not yet been terminated or ended, causing the other
Employer to suffer a loss, it shall be jointly and severally liable with the
Employee for damages.
Article 92
If a staffing firm violates this
Law, the labor administration authority and other relevant competent authorities
shall order it to rectify the situation. If the circumstances are serious, it
shall impose a fine of not less than RMB￥1,000 and not more than RMB￥5,000 for
each person, and the administration for industry and commerce shall revoke the
business license. If the Employee(s) placed suffer(s) harm, the staffing firm
and the Accepting Unit shall be jointly and severally liable for damages.
Article 93
An Employer that carries on business without the legal
qualifications therefore will be pursued according to law for its legal
liability for its illegal and criminal acts. If its Employees have already
performed labor, the Employer or its investor(s) shall pay them labor
compensation, severance pays and damages in accordance with the relevant
provisions of this Law. If the Employees suffer harm as a result thereof, the
said unit shall be liable for damages.
Article 94
If an individual
that contracts for the operation of a business hires Employees in violation of
this Law and a Employee suffers harm as a result thereof, the organization that
employed such contractor shall be jointly and severally liable with the
contractor for damages.
Article 95
If a labor administration
authority, another competent authority or a member of its working personnel
neglects its/his duties, fails to perform its/his statutory duties or exercises
its/his authority in violation of the law, thereby causing harm to a Employee or
an
Employer, liability for damages shall be borne and the leading official
directly in charge and the other persons directly responsible shall be subjected
to administrative penalties in accordance with the law; if a criminal offense is
constituted, criminal liability shall be pursued in accordance with the law.
CHAPTER 8 SUPPLEMENTARY PROVISIONS
Article
96
Where laws or administrative statutes contain, or the State Council has
formulated, separate regulations concerning the conclusion, performance,
amendment, termination or ending of employment contracts by and between
institutions and those of their working personnel that are subject to the
employment system, matters shall be handled in accordance with such regulations;
in the absence of such regulations, matters shall be handled in accordance with
this Law.
Article 97
Employment contracts concluded in accordance
with the law before the implementation of this Law and continuing to exist on
the implementation date of this Law shall continue to be performed. For the
purposes of item (3) of the second paragraph of Article 14 hereof, the number of
consecutive occasions on which a fixed-term employment contract is concluded
shall be counted from the first renewal of such contract to occur after the
implementation of this Law.
If an employment relationship was established
prior to the implementation of this Law without the conclusion of a written
employment contract, such contract shall be concluded within one month from the
implementation date of this Law.
If an employment contract existing on the
implementation date of this Law is terminated or ends after the implementation
of this Law and, pursuant to Article 46 hereof, severance pay is payable, the
number of years for which severance pay is payable shall be counted from the
implementation date of this Law. If, under relevant regulations in effect prior
to the implementation of this Law, the Employee is entitled to severance pay
from the Employer in respect of a period preceding the implementation of this
Law, the matter shall be handled in accordance with the relevant regulations
that were in effect at that time.
Article 98
This Law shall be
implemented from January 1, 2008. |
