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Labor Contract Law of the People

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Labor Contract Law of the People

    Labor Contract Law of the People's Republic of China

    Employment & Labor 06-29-2007 发文日期 内容分类 Law

    the Standing

    Committee of the Order of the President 发文机关 文号 National People's [2007] No. 65

    Congress

    Effective 2008-01-01 时效性 生效日期

    National 有效范围

Labor Contract Law of the People's Republic of China

Order of the President [2007] No. 65

June 29, 2007

The Labor Contract Law of the People's Republic of China was adopted at the 28th Session of

    the Standing Committee of the 10th National People's Congress of the People's Republic of

    China on June 29, 2007 and is hereby promulgated and effective as of January 1, 2008.

President of the People's Republic of China: Hu Jin-tao

Labor Contract Law of the People's Republic of China

    (adopted at the 28th Session of the Standing Committee of the 10th National People's Congress

    of the People's Republic of China on June 29, 2007)

Contents

Chapter I General Provisions

    Chapter II Conclusion of Labor Contracts

    Chapter III Performance and Change of Labor Contracts

    Chapter IV Dissolution and Termination of Labor Contracts

    Chapter V Special Provisions

    Section 1 Collective Contracts

    Section 2 Labor Dispatch

    Section 3 Part-time Labor Services

    Chapter VI Supervision and Examination

    Chapter VII Legal Liability

    Chapter VIII Supplementary Provisions

Chapter I General Provisions

    Article 1 This Law is formulated to improve the labor contract system, specify the rights and obligations of both parties to labor contracts, protect the lawful rights and interests of laborers

    and establish and develop a stable and harmonious labor relationship.

    Article 2 This Law shall apply to the conclusion, performance, change, dissolution or termination of labor contracts through the establishment of labor relationships between institutions such as

    enterprises, individually-owned economic organizations and private non-enterprise work units

    within the territory of the People's Republic of China (hereinafter referred to as "employing units") and laborers.

    The conclusion, performance, change, dissolution or termination of labor contracts by state authorities, institutions, social organizations and laborers with which they have a labor relationship shall refer to this Law.

Article 3 The conclusion of labor contracts shall comply with the principles of lawfulness,

    fairness, equality and willingness, consensus consultation and faithfulness and creditworthiness.

    Labor contracts that are lawfully concluded shall be legal binding. Employing units and laborers shall perform the obligations agreed in labor contracts.

    Article 4 An employing unit shall lawfully establish and improve rules and systems, protect the labor rights enjoyed by laborers and perform labor obligations.

Where an employing unit formulates, amends or decides on rules and systems that are directly

    related to the personal benefits of laborers or important matters such as labor rules and systems, working hours, rest days, labor safety and health, insurance benefits, employee training, labor discipline and labor quota administration, it shall hold a discussion with

    employees' assembly or all employees, submit proposals and give suggestions and determine the issue following fair consultation with labor unions or employees' representatives.

In the process of decision-making and implementation of rules and systems and important

    matters, where a labor unions or employee deems it improper, it shall have the right to raise the issue to employing units and amendments and improvements shall be made through consultation.

    The employing unit shall publicly announce the rules and systems that are directly related to the personal benefits of laborers or the decisions on important matters, or inform the laborers of such rules and systems and decisions.

    Article 5 The labor administrative department of the people's government at the county level or above and labor unions and representatives of enterprises shall establish a sound three-party

    mechanism for coordinating labor relationships and jointly study and solve important issues relevant to labor relationships.

    Article 6 A labor union shall assist and guide laborers to lawfully conclude and perform labor contracts with employing units and establish a collective consultation mechanism with employing units, and protect the lawful rights and interests of laborers.

Chapter II Conclusion of Labor Contracts

    Article 7 An employing unit has established labor relationships with laborers from the date of use of labor services. The employing unit shall establish a register of employees for inspection.

    Article 8 Where an employing unit employs laborers, it shall truly inform the laborers of the job specifications, working conditions, place of work, occupational hazards, safe production status and labor remuneration, and other circumstances requested to be informed by the laborers. The

    employing unit shall have the right to understand the basic circumstances directly related to the laborers and labor contracts, and the laborers shall give a true explanation.

    Article 9 Where an employing unit employs laborers, it may not detain the resident identity card and other documents of laborers, nor request the laborers to provide guarantee or collect property from laborers in other names.

Article 10 Written labor contracts shall be concluded to establish labor relationships.

    Where labor relationship has been established but no written labor contract was concluded at the same time, the written labor contract shall be concluded within one month of the date of use of labor services.

    Where the employing unit and laborers conclude labor contracts before the use of labor services, the labor relationships shall be established from the date of use of labor services.

Article 11 Where an employing unit has not established a written labor contract at the same time

    as the use of labor services, and the labor remuneration has not been specified with the laborers, the labor remuneration of laborers newly employed shall be subject to the standard of the provisions of collective contracts. Where there is no collective contract or there is no

    provision in the collective contract, equal remuneration for the same work shall be paid.

    Article 12 Labor contracts are divided into labor contracts with fixed terms, labor contracts with unfixed terms and labor contracts where the term of service equals to the period of completion

    of a certain task.

    Article 13 Labor contracts with fixed terms shall refer to labor contracts the termination date of which is agreed between employing units and laborers.

    Where employing units and laborers have reached a consensus after consultation, they may conclude labor contracts with fixed terms.

    Article 14 Labor contracts with unfixed terms shall refer to labor contracts the termination date of which is not agreed between employing units and laborers.

    Where an employing unit and a laborer have reached a consensus after consultation, they may conclude a labor contract with unfixed terms. In any of the following circumstances where the laborer requests or agrees to renew or conclude labor contracts, the labor contract with unfixed

    terms shall be concluded unless laborers request the conclusion of a labor contract with fixed terms:

(1) The laborer has been working with the employing unit for 10 consecutive years;

    (2) Where the employing unit implements the labor contract system for the first time or labor contracts are re-concluded due to restructuring of state-owned enterprises, the laborer has

    been working with the employing unit for 10 consecutive years and there is less than 10 years

    before the statutory retirement age; or

    (3) Where a labor contract with fixed terms has been concluded for two consecutive times and no labor contract is renewed for laborers that do not fall within the circumstances specified in Items (1) and (2) of Articles 39 and 40 hereof.

    Where the employing unit fails to conclude a written labor contract with the laborer from one year of the use of labor services, the labor contract with unfixed terms shall be deemed to have been established between the employing unit and the laborer.

    Article 15 Labor contracts where the term of service equals to the period of completion of a certain task shall refer to labor contracts where the term of service is agreed by an employing unit and a laborer to be the period of completion of a certain task.

    Where the employing unit and the laborer have reached a consensus after consultation, they may conclude a labor contract where the term of service equals to the period of completion of a certain task.

    Article 16 An employing unit and a laborer shall reach a consensus after consultation on the labor contract which shall be effective after signing and fixing a seal on the text of the labor contract by the employing unit and the laborer.

The employing unit and the laborer shall each keep a copy of the text of the labor contract.

Article 17 A labor contract shall contain the following terms and conditions:

    (1) The name, domicile and the legal representative or the major responsible person of the employing unit;

    (2) The name, domicile and the number of resident identity card or of other valid identity document of the laborer;

    (3) The term of the labor contract;

    (4) The job specifications and the place of work;

    (5) The working hours and rest days;

    (6) Labor remuneration;

    (7) Social insurance;

    (8) Labor protection, labor conditions and protection against occupational hazards; and

    (9) Other matters that shall be included in the labor contract as required by laws and regulations.

    In addition to the essential provisions of the labor contract provided in the preceding paragraph, the employing unit and the laborer may agree on other matters such as the probationary period, training, maintenance of confidentiality, supplementary insurance and fringe benefits.

    Article 18 Where the labor remuneration and labor conditions are not specified in the labor contract and a dispute arises, the employing unit and the laborer may hold a new consultation. If the consultation fails, the provisions of the collective contract shall apply. Where there is no

    collective contract or where no provision of labor remuneration is contained herein, equal remuneration for the same work shall be paid. Where there is no collective contract or there is no provision on labor conditions contained herein, the relevant state provisions shall apply.

    Article 19 Where the term of the labor contract is over three months but less than one year, the probationary period shall not exceed one month. Where the labor contract is over one year but less than three years, the probationary period shall not exceed two months. The probationary period of the labor contract with a fixed term of three years or unfixed term shall not exceed six months.

Article 20 The wages of the laborer in the probationary period may not be lower than the lowest

    wages of the same position in the employing unit or 80% of the wages agreed in the labor contract, and may not be lower than the local lowest wage standard of the employing unit.

Article 21 In the probationary period, an employing unit may not dissolve the labor contract

    unless the laborer is under the circumstances prescribed in Article 39 and Items (1) and (2) of Article 40 hereof. Where the employing unit dissolves the labor contract during the probationary period, the laborer shall be informed of the reasons.

    Article 22 Where an employing unit provides special training fees to a laborer for training on special skills, it may conclude an agreement with the laborer and agree on the term of service.

    Where the laborer violates the agreements of the term of service, it shall pay liquidated damages to the employing unit. The amount of the liquidated damages may not exceed the training fees provided by the employing unit. The liquidated damages that the employing unit requires the laborer to pay may not exceed the training fees that shall be apportioned in the non-performance period of the term of service.

    Where the employing unit and the laborer agree on the term of service, the increment of labor remuneration of the laborer in the service period according to the normal wage adjustment mechanism shall not be affected.

    Article 23 An employing unit and a laborer may agree on the maintenance of the confidentiality of trade secrets of the employing unit and the confidentiality matters relevant to intellectual

    property rights in the labor contract.

    In relation to the laborer who has the confidentiality obligation, the employing unit may agree on the competitive restriction clause with the laborer in the labor contract or the confidentiality

    agreement, and agree on the monthly economic compensation payable to the laborer within the competitive restriction period after the dissolution or termination of the labor contract. Where the laborer violates the agreement of the competitive restriction, it shall pay liquidated damages to

    the employing unit in accordance with agreements.

    Article 24 The personnel subject to the competitive restriction shall be limited to senior management personnel, senior technical personnel and other personnel with confidentiality

    obligation of the employing unit. The scope, geographic region and time limit of restrictive competition shall be agreed by the employing unit and the laborer and the agreement of restrictive competition may not violate the provisions of laws and regulations.

    After the dissolution or termination of the labor contract, the time limit of restrictive competition of the personnel prescribed in the preceding paragraph for working in other employing units that manufacture or operate the same type of products or that engage in the same type of business having competitive relationship with the original employing unit, or for commencing its own

    business in manufacturing or operating the same type of products and engaging in the same type of business shall not exceed two years.

    Article 25 Unless in the circumstances prescribed in Articles 22 and 23 hereof, no employing unit may agree with the laborer on the full responsibility of liquidated damages by the laborer.

Article 26 The following labor contracts are invalid or partly invalid:

    (1) Conclude or change the labor contract in violation of the true meaning of the party by deceptive means or threats, or taking advantage of the party's precarious position;

    (2) Exempt the employing unit from the statutory responsibility by itself or exclude the rights of laborers; and

    (3) Violate the mandatory provisions of laws and administrative regulations.

Where there is a dispute over the invalidity or partial invalidity of a labor contract, it shall be

    confirmed by the labor dispute arbitration authority or the people's court.

    Article 27 Where a labor contract is partially invalid and does not affect the validity of other parts, such other parts shall still be valid.

    Article 28 Where a labor contract is confirmed to be invalid, and the laborer has provided labor services, the employing unit shall still pay labor remuneration to the laborer. The amount of labor remuneration shall be confirmed with reference to the labor remuneration of the laborer of

    the same or similar position in the employing unit.

Chapter III Performance and Change of Labor Contracts

    Article 29 An employing unit and a laborer shall fully perform their respective obligations in accordance with the agreements of the labor contract.

    Article 30 An employing unit shall timely pay labor remuneration in full to the laborer in accordance with the agreements of the labor contract and state provisions.

Where the employing unit is in default of labor remuneration or does not pay labor remuneration

    in full, the laborer may apply to the local people's court for a payment order in accordance with the law and the people's court shall issue the payment order in accordance with the law.

Article 31 The employing unit shall strictly implement the labor quota standard and may not

    threaten or threaten the laborer to work overtime in disguise. Where the employing unit arranges for overtime work, it shall make overtime payment to the laborer in accordance with

the relevant state provisions.

    Article 32 Where a laborer refuses to follow the instructions that do not comply with regulations of the management personnel of the employing unit or refuses dangerous operation, it shall not be deemed as violation of the labor contract.

    The laborer shall have the right to make criticism, report and bring a charge against the employing unit in respect of labor conditions endangering the safety of life and physical health.

Article 33 Where an employing unit changes its name, legal representative, major responsible

    person or investors, the performance of the labor contract shall not be affected.

    Article 34 Where there is a merger or division of an employing unit, the original labor contract shall continue to be valid and the labor contract shall be performed continuously by the

    employing unit that succeeds its rights and obligations.

    Article 35 An employing unit and a laborer may change the content agreed in the labor contract after reaching a consensus through consultation. The change of labor contract shall be in

    writing.

    A copy of the text of the labor contract after change shall be kept by the employing unit and the laborer respectively.

Chapter IV Dissolution and Termination of Labor Contracts

Article 36 Where an employing unit and a laborer have reach a consensus after consultation,

    they may dissolve the labor contract.

    Article 37 A laborer may dissolve the labor contract by giving the employing unit prior notice of 30 days in writing. The laborer may dissolve the labor contract within the probationary period by

    giving the employing unit three days of prior notice.

    Article 38 A laborer may dissolve a labor contact when the employing unit is under any of the following circumstances:

(1) Fails to provide labor protection or labor conditions in accordance with the agreements of

    the labor contract;

    (2) Fails to timely pay labor remuneration in full;

    (3) Fails to pay social insurance premiums for the laborer in accordance with the law;

    (4) The rules and systems of the employing unit violate laws and regulations and the rights of

the laborers are harmed;

    (5) The labor contract is invalid due to the circumstances prescribed in Paragraph One of Article 26 hereof; or

    (6) Other circumstances where laborers may dissolve labor contracts according to the

    provisions of laws and administrative regulations.

    Where the employing unit coerces laborers into provision of labor services by means of violence, threat or illegal restriction of personal freedom, or the employing unit gives instructions

    in violation of regulations or endangers the personal safety of laborers by dangerous operations, the laborer may immediately dissolve the labor contract without the need of giving prior notice to the employing unit.

    Article 39 An employing unit may dissolve the labor contract where the laborer is in any of the following circumstances:

    (1) The laborer is confirmed to fail to meet the employment conditions in the probationary period;

    (2) The laborer is in serious violation of the rules and systems of the employing unit;

    (3) The laborer is in serious dereliction of duty or practices graft which brings about significant harm to the employing unit;

    (4) The laborer establishes labor relationships with other employing units at the same time

    that brings about serious impact on the completion of tasks of the employing unit, or the laborer fails to make rectification after the employing unit informs it of the issue;

    (5) The labor contract is invalid in the circumstances prescribed in Item 1 of Paragraph One of

    Article 26 hereof; or

    (6) Criminal liability is pursued against the laborer in accordance with the law.

    Article 40 In any of the following circumstances, an employing unit may dissolve the labor contract by giving the laborer a prior written notice of 30 days or pay the laborers an additional month of wages:

    (1) The laborer is sick or injured due to reasons unrelated to work, and fails to perform the original work after the prescribed treatment period or fails to perform other work arranged by the

    employing unit;

    (2) The laborer is not qualified for the job, and after training is given or the position is

changed, the laborer still fails to be qualified for the job;

    (3) There is a significant change to the objective circumstances on which the conclusion of

    the labor contract is based, leading to the non-performance of the labor contract, and after the

    consultation between the employing unit and the laborer, no agreement can be reached in respect of the change of the content of the labor contract.

    Article 41 In any of the following circumstances, where there is a need to make 20 or more personnel redundant or make less than 20 personnel redundant but they account for more than 10% of the total number of laborers, the employing unit shall report to the labor union or all laborers 30 days in advance to solicit the opinions of the labor union or laborers. Personnel may be made redundant after the redundancy plan is reported to the labor administrative department where:

    (1) The employing unit is restructured in accordance with the provisions of the Enterprise Bankruptcy Law;

    (2) There is a serious difficulty in production and operation;

    (3) There is a change of production, reform of significant technology or adjustment of the

    mode of operation of the enterprise, redundancy shall still be made after the change of labor contracts;

    (4) There is a significant change to the objective circumstances on which the conclusion of the labor contract is based, leading to the non-performance of the labor contract.

To make personnel redundant, the following personnel shall be retained in priority:

    (1) the personnel who have concluded a labor contract with fixed terms of a relatively longer period with the employing unit;

    (2) the personnel have concluded labor contracts with unfixed terms with the employing unit;

    (3) there is no other personnel in the family who is in employment and there is a need to financially support the elderly or the underage.

    Where the employing unit makes personnel redundant in accordance with Paragraph One of this article, it shall inform the personnel that have been made redundant if recruitment of personnel is required within six months and the personnel that are made redundant shall be

    employed on the same terms in priority.

    Article 42 Where the laborer is in any of the following circumstances, the employing unit may not

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