Labor
Contract Law of the People's Republic of China
NPC.gov.cn
Order
of the President of the People’s Republic of China
No.65
The
Labor Contract Law of the People’s Republic of China, adopted at the 28th
Meeting of the Standing Committee of the Tenth National People’s Congress of
the People’s Republic of the China on June 29, 2007, is hereby promulgated and
shall go into effect as of January 1, 2008.
Hu
Jintao
President
of the People’s Republic of China
June
29, 2007
Labor
Contract Law of the People's Republic of China
(Adopted
at the 28th Meeting of the Standing Committee of the Tenth National People’s
Congress on June 29, 2007)
Contents
Chapter I
General Provisions
Chapter II
Conclusion of a Labor Contract
Chapter III
Performance and Modification of a Labor Contract
Chapter IV
Revocation and Termination of a Labor Contract
Chapter V
Special Provisions
Section
1 A Collective Contract
Section
2 Labor Dispatch
Section
3 Part-Time Employment
Chapter VI
Supervision and Inspection
Chapter VII
Legal Responsibility
Chapter VIII
Supplementary Provisions
Chapter
I
General
Provisions
Article 1 This
Law is enacted in order to improve the labor contract system, define the rights
and obligations of both parties to a labor contract, protect the legitimate
rights and interests of workers, and establish and
develop a harmonious and stable labor relationship.
Article 2 This
Law is applicable where organizations such as enterprises, self-employed
economic organizations and private non-enterprise units within the territory of
the People’s Republic of China (hereinafter referred to as employing units)
establish labor relationships with workers through concluding, performing,
modifying, revoking or terminating labor contracts with them.
State
organs, institutions and public organizations and the workers with whom they
are to establish labor relationships shall conclude, perform, modify, revoke or
terminate labor contracts in accordance with this Law.
Article 3
Labor contracts shall be concluded in adherence to the principles of
lawfulness, fairness, equality, voluntariness, consensus through consultation,
and good faith.
A
labor contract concluded in accordance with law shall have binding force. Both
the employing unit and the worker shall fulfill the obligations stipulated in
the labor contract.
Article 4
Employing units shall establish and improve labor rules and regulations to
ensure that workers enjoy the labor rights and fulfill the labor obligations.
When
formulating or modifying the rules and regulations, or making decisions on
important matters, which have a direct bearing on the immediate interests of
workers, such as labor remuneration, working hours, rest and vacation,
occupational safety and health, insurance and welfare, training, labor
discipline and labor quota control, the employing unit shall, after discussion
by the conference of workers or all the workers, put forward plans and
suggestions and make decisions after consulting with the trade union or the
representatives of the workers on an equal footing.
If,
during the implementation of the rules and regulations or the decisions on
important matters, the trade union or the workers hold that such rules,
regulations or decisions are inappropriate, it or they are entitled to put
forward the opinion to the employing unit, and have the rules, regulations or
decisions modified and improved through consultation.
The
employing unit shall make public or inform the workers of the rules and
regulations, and the decisions on important matters, which have a direct
bearing on the immediate interests of the workers.
Article 5 The
administrative department of labor of the people’s government at or above the
county level shall, together with the representatives of the trade union and
the enterprise, establish a sound tripartite mechanism for coordination of
labor relationships, in order to jointly discuss and resolve the major issues
concerning labor relationships.
Article 6 The
trade union shall give assistance and guidance to the workers in lawfully
concluding labor contracts with the employing unit and performing the same, and
establish a collective consultation mechanism with the employing unit in order
to protect the legitimate rights and interests of workers.
Chapter
II
Conclusion
of a Labor Contract
Article 7 A
labor relationship is established by an employing unit
with a worker as of the date the former employs the latter. An employing unit
shall keep a register of workers for reference.
Article 8 When
an employing unit recruits a worker, it shall truthfully inform him of the job
description, the working conditions, the place of work, occupational hazards,
conditions for work safety, labor remuneration and other matters which the
worker requests to be informed of. The employing unit has the right to acquire the
basic information of the worker which is directly related to the labor
contract, and the worker shall truthfully provide the same.
Article 9 When
recruiting a worker, the employing unit may not detain the worker’s resident
identity card or other certificates, nor may it require him to provide guaranty
or collect money or things of value from him in other names.
Article 10 To
establish a labor relationship, a written labor contract shall be concluded.
In
the event that no written labor contract is concluded at the time when a labor
relationship is established, such a contract shall be concluded within one
month as of the date when the employing unit employs a worker.
Where
an employing unit and a worker conclude a labor contract before the latter
starts to work, the labor relationship shall be established as of the date when
the latter starts to work.
Article 11 In
the event that an employing unit fails to conclude a written labor contract
with a worker at the same time as it employs him, and labor remuneration agreed
upon with him is not definite, the remuneration shall be decided on according
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 for
equal work shall be practiced.
Article 12 Labor
contracts consist of fixed-term labor contracts, open-ended labor contracts and
labor contracts that expire upon completion of given jobs.
Article 13 A
fixed-term labor contract is one the ending date of
which is agreed upon between the employing unit and the worker.
An
employing unit and a worker may conclude a fixed-term labor contract upon
reaching consensus through consultation.
Article 14 An
open-ended labor contract is one where the employing unit and the worker have
agreed not to stipulate a definite ending date.
An
employing unit and a worker may conclude an open-ended labor contract upon
reaching consensus through consultation. If a worker proposes or agrees to
renew the labor contract or to conclude a labor contract in any of the
following circumstances, an open-ended labor contract shall be concluded,
unless the worker requests the conclusion of a fixed-term labor contract:
(1)
The worker has been working for the employing unit for a consecutive period of
10 or more years;
(2)
The worker has been working for the employing unit for a consecutive period of
10 or more years but less than 10 years away from the statutory retirement age
when the employing unit introduces the labor contract system or when the State-owned
enterprise has to conclude a new labor contract with him as a result of
restructuring; or
(3)
The worker intends to renew the labor contract after he has consecutively
concluded a fixed-term labor contract with the employing unit twice and he has
not been found in any of the circumstances specified in Article 39 or
Subparagraph (1) or (2) in Article 40 of this Law.
If
an employing unit fails to conclude a written labor contract with a worker
within one year as of the date when it employs the worker, it shall be deemed
to have concluded an open-ended labor contract with the latter.
Article 15 A
labor contract that expires upon completion of a given job is one in which the
employing unit and the worker have agreed that the period for completion of the
given job is the term of the contract.
An
employing unit and a worker may, upon reaching consensus through consultation,
conclude a labor contract which expires upon completion of a given job.
Article 16 A
labor contract shall become effective when the
employing unit and the worker reach agreement through consultation thereon and
both parties sign or affix their seals on the copies of the contract.
The
employing unit and the worker shall each keep a copy of the labor contract.
Article 17 A
labor contract shall contain the following terms:
(1)
name, domicile and legal representative or the
principal leading person of the employing unit;
(2)
name, address and the number of the resident identity
card or of other valid identity documents of the worker;
(3)
term of the labor contract;
(4)
job description and the place of work;
(5)
working hours, rest and vacation;
(6)
labor remuneration;
(7)
social insurance;
(8)
occupational protection, working conditions and
protection against occupational hazards; and
(9)
other terms which are required to be included in a
labor contract, as provided for by laws and regulations.
In
addition to the requisite terms mentioned above, an employing unit and a worker
may agree to have other matters stipulated in the labor contract, such as
probation period, training, confidentiality, supplementary insurance and
welfare benefits.
Article
18 If
a dispute arises because the labor remuneration rate, the standard for working
conditions, etc. are not definitely specified in the labor contract, the
employing unit and the worker may negotiate anew. If
the negotiation is unsuccessful, the relevant stipulations of the collective
contract shall be applicable. If there is no collective contract or the
collective contract is silent on the issue of labor remuneration, equal pay for
equal work shall be practiced. If there is no collective contract or the
collective contract is silent on the standards for working conditions, etc.,
the relevant regulations of the State shall apply.
Article 19 If
the term of a labor contract is more than three months but less than one year,
the probation period may not exceed one month; if the term is more than one
year but less than three years, the probation period may not exceed two months;
and if the term is fixed for three or more years or is open-ended, the
probation period may not exceed six months.
An
employing unit and a worker may agree upon only one probation period.
No
probation period may be stipulated in a labor contract that expires upon
completion of a given job or in a labor contract for a term of less than three
months.
The
probation period shall be included in the term of a labor contract. If a labor
contract only provides for a probation period, that period shall not stand and
the term provided for shall be the term of the labor contract.
Article 20 The
wage of a worker on probation shall not be lower than the lowest wage level for
the same job of the employing unit or be less than 80 per cent of the wage
agreed upon in the labor contract, and shall not be lower than the minimum wage
rate in the place where the employing unit is located.
Article 21 An
employing unit may not revoke a labor contract during the probation period
unless the worker is found in one of the circumstances specified in Article 39
or Subparagraph (1) or (2) in Article 40 of this Law. If an employing unit
revokes a labor contract during the probation period, it shall explain the
reasons to the worker.
Article 22 If an
employing unit provides special funding for a worker’s training and gives him
professional technical training, it may conclude an agreement with the worker
specifying the term of service.
If
the worker breaches the agreement on the term of service, he shall pay a
penalty to the employing unit as agreed upon. The sum of the penalty may not
exceed the training expenses paid by the employing unit. The penalty that the
employing unit requires the worker to pay may not exceed the portion of the
training expenses allocable to the unperformed portion of the term of service.
Where
the employing unit and the worker reach an agreement on the term of service,
the raise in the worker’s remuneration according to the regular wage adjustment
mechanism during the term of service shall not be adversely affected.
Article 23 An
employing unit and a worker may have such terms stipulated in the labor
contract as keeping business secrets of the employing unit and keeping
confidential the matters relating to its intellectual property rights.
With
regard to a worker who has a confidentiality obligation, the employing unit may
have stipulated in the labor contract or confidentiality agreement competition
restriction and payment of financial compensation to him on a monthly basis
during the term of the competition restriction after the labor contract is
revoked or terminated. If the worker breaches the stipulation on competition
restriction, he shall pay penalty to the employing unit as agreed upon.
Article 24 The
persons subject to competition restriction shall be limited to senior managers,
senior technicians and other persons who are under the confidentiality
obligation to the employing unit. The scope, geographic area and term of
competition restriction shall be agreed upon by the employing unit and the
worker, and such agreement shall not be at variance with the provisions of laws
and regulations.
The
term of competition restriction, calculated from the revocation or termination
of the labor contract, for one of the persons, as mentioned in the preceding
paragraph, to go to work for a competing employing unit that produces or deals
in the same type of products or is engaged in the same type of business as his
original employing unit, or to establish his own business to produce or deal in
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 of this Law,
an employing unit shall not enter into an agreement with a worker on payment of
penalty by the worker for breach of contract.
Article 26 A
labor contract shall be invalid or partially invalid
under one of the following circumstances:
(1)
The labor contract is concluded or modified against a party’s true intention by
means of deception or coercion, or when the party is in precarious situations;
(2)
The employing unit disclaims its statutory responsibility or denies the worker
his rights; or
(3)
The labor contract is at variance with the mandatory provisions of laws or
administrative regulations.
If
a dispute arises over the invalidity or partial invalidity of a labor contract,
the matter shall be determined by a labor dispute arbitration institution or a
people’s court.
Article 27 If
part of a labor contract is invalid, which does not affect the validity of the
rest of the contract, the rest shall remain valid.
Article 28 If a
labor contract is determined to be invalid but the worker has performed it, the employing unit shall pay the worker remuneration.
The amount of remuneration shall be determined mutatis mutandis according to
that for the workers holding the same or similar posts in the employing unit.
Chapter
III
Performance
and Modification of a Labor Contract
Article 29 An
employing unit and a worker shall fully perform their respective obligations in
accordance with the labor contract.
Article 30 The
employing unit shall pay their workers remuneration on time and in full in
accordance with the labor contract and the regulations of the State.
If
an employing unit defaults in payment or underpays the labor remuneration, the
worker concerned may, in accordance with law, apply to the local people’s court
for an order for payment, and the people’s court shall issue such an order in
accordance with law.
Article 31 The
employing unit shall strictly implement the norm set for labor quota and shall
not compel the workers to work overtime or do so in disguised form. If an
employing unit arranges for a worker to work overtime, it shall give him
overtime pay in accordance with the relevant regulations of the State.
Article 32 A worker shall not be deemed to be breaching the labor
contract if he refuses to perform hazardous operations under instructions given
in violation of rules and regulations or peremptorily given by a manager of the
employing unit.
A
worker shall have the right to criticize or report or lodge accusations against
the employing unit in respect of the working conditions that endanger his life
or health.
Article 33
Where an employing unit alters its name, replaces its legal representative, the
principal leading person or investor(s), etc., performance of the labor
contract shall not be affected.
Article 34 Where
an employing unit is merged, divided, etc., the existing labor contract shall
remain valid and continue to be performed by the employing unit which succeeds
to its rights and obligations.
Article 35 An
employing unit and a worker may modify the provisions of the labor contract, if
they reach consensus on the matter through consultation. Modification of a
labor contract shall be made in writing.
The
employing unit and the worker shall each keep a copy of the modified labor
contract.
Chapter
IV
Revocation
and Termination of a Labor Contract
Article 36 An
employing unit and a worker may revoke the labor contract if they reach
consensus on the matter through consultation.
Article 37 A worker may have the labor contract revoked by giving a
written notification to the employing unit 30 days in advance. During the
probation period, a worker may have the labor contract revoked by notifying the
employing unit of his intention three days in advance.
Article 38 A worker may have the labor contract revoked if the employing
unit is found in any of the following circumstances:
(1)
failing to provide occupational protection or working
conditions as agreed upon in the labor contract;
(2)
failing to pay labor remuneration on time and in full;
(3)
failing to pay the social insurance premiums for the
worker in accordance with law;
(4)
having rules and regulations that are at variance with
laws or regulations, thereby impairing the worker’s rights and interests;
(5)
invalidating the labor contract as a result of one of the circumstances
specified in the first paragraph of Article 26 of this Law; or
(6)
other circumstances in which a worker may have the
labor contract revoked as provided for by laws or administrative regulations.
If
an employing unit forces a person to work by resorting to violence,
intimidation or illegal restriction of personal freedom, or if it gives
instructions in violation of rules and regulations or gives peremptory orders
to the worker to perform hazardous operations, which endanger his personal
safety, the latter may revoke the labor contract forthwith without notifying
the employing unit of the matter in advance.
Article 39 The
employing unit may have the labor contract revoked if a worker is found in any
of the following circumstances:
(1)
being proved unqualified for recruitment during the
probation period;
(2)
seriously violating the rules and regulations of the
employing unit;
(3)
causing major losses to the employing unit due to
serious dereliction of duty or engagement in malpractices for personal gain;
(4)
concurrently establishing a labor relationship with
another employing unit, which seriously affects the accomplishment of the task
of the original employing unit, or refusing to rectify after the original
employing unit brings the matter to his attention;
(5)
invalidating the labor contract as a result of the circumstance specified in
Subparagraph (1) of the first paragraph of Article 26 of this Law; or
(6)
being investigated for criminal responsibility in
accordance with law.
Article 40 In
one of the following circumstances, an employing unit may revoke the labor
contract, if it notifies in writing the worker of its intention 30 days in
advance or after paying him an extra one month salary:
(1)
The worker is unable to take up his original work or any other work arranged by
the employing unit on the expiration of the specified period of medical
treatment for illness or for injury incurred when not at work;
(2)
The worker is incompetent for the post and remains incompetent after receiving
a training or being assigned to another post; or
(3)
The objective conditions taken as the basis for conclusion of the contract have
greatly changed, so that the original labor contract cannot be performed and,
after consultation between the employing unit and the worker, no agreement is
reached on modification of the contents of the labor contract.
Article 41 If,
in any of the following circumstances, an employing unit needs to cut
employment by more than 20 persons, or by less than 20 persons, which, however,
accounts for more than 10 per cent of the total number of the enterprise’s
employees, it may do so after it explains the situation to the trade union or
all of its employees 30 days in advance, solicits opinions from among them and
submit its plan for cutting employment to the administrative department of
labor:
(1)
The enterprise is to undergo reorganization pursuant to the provisions of the
Law on Enterprise Bankruptcy;
(2)
The enterprise is in dire straits in production and management;
(3)
The enterprise changes its line of production, introduces a major technological
updating or adjusts its business method, and, after modification of the labor
contracts, still needs to reduce its personnel; or
(4)
The objective economic conditions taken as the basis for conclusion of the
labor contracts have greatly changed, so that the original labor contracts
cannot be performed.
When
cutting employment, the employing unit shall continue to employ the following
persons by giving priority to them:
(1)
persons who have concluded fixed-term labor contracts
for a relatively long term with the employing unit;
(2)
persons who have concluded open-ended labor contracts
with the employing unit; and
(3)
persons none of whose other family members has a job
or who have an elder or minor depending on his support.
If
an employing unit that has cut its employment pursuant to the provisions in the
first paragraph of this Article goes to recruit employees anew within six
months, it shall give notification to the laid off persons and, under equal
conditions, recruit them before others.
Article 42 The
employing unit may not revoke the labor contract concluded with the worker, who
is under one of the following circumstances, by applying the provisions in
Articles 40 and 41 of this Law:
(1)
Being engaged in operations exposed to occupational disease hazards, the worker
is not given pre-departure occupational health examinations, or being suspected
of an occupational disease, is in the process of being diagnosed or is under
medical observation;
(2)
Having contracted an occupational disease or being injured at work, the work is
confirmed to have totally or partially lost the ability to work;
(3)
The worker is in the prescribed period of medical treatment for illness, or for
injury incurred when not at work, and;
(4)
The worker is during the pregnant, puerperal or breast-feeding stage;
(5)
The worker has been working for the employing unit continuously for 15 years in
full and is less than 5 years away from the statutory retirement age; or
(6)
The worker is in any other circumstances as provided for by laws or
administrative regulations.
Article 43 Where
an employing unit intends to revoke a labor contract unilaterally, it shall
notify the trade union of the reasons in advance. If the employing unit
violates the provisions of laws or administrative regulations or the labor
contracts, the trade union shall have the right to demand that the employing
unit put it right. The employing unit shall consider the trade union’s opinion
and notify the trade union in writing of the settlement of the matter.
Article 44 A
labor contract shall be terminated under one of the
following circumstances:
(1)
The term of the contract expires;
(2)
The worker concerned begins to enjoy the benefits of the basic old-age
insurance pension in accordance with law;
(3)
The worker concerned dies, or is declared dead or missing by the people’s
court;
(4)
The employing unit is declared bankrupt in accordance with law;
(5)
The business license of the employing unit is revoked, the employing unit is
ordered to close down or to dissolve, or it decides to dissolve on an earlier
date; or
(6)
any other circumstances provided for by laws and
administrative regulations.
Article 45 At
the expiration of a labor contract, under one of the
circumstances prescribed in Article 42 of this Law, the term of the labor
contract shall be extended until the necessary conditions cease to exist.
However, the termination of a labor contract with a worker who has totally or
partially lost the ability to work, as specified in Subparagraph (2) of Article
42 of this Law shall be handled in accordance with the regulations of the State
governing insurance for work-related injury.
Article 46 The
employing unit shall pay financial compensation to a worker under one of the
following circumstances:
(1)
The worker revokes the labor contract pursuant to the provisions in Article 38
of this Law;
(2)
The employing unit proposes revocation of the labor contract to the worker
pursuant to the provisions in Article 36 of this Law and the parties reach an
agreement thereon through consultation;
(3)
The employing unit revokes the labor contract pursuant to the provisions in
Article 40 of this Law;
(4)
The employing unit revokes the labor contract pursuant to the provisions in the
first paragraph of Article 41 of this Law;
(5)
The fixed-term labor contract is terminated pursuant to the provisions in
Subparagraph (1) of Article 44 of this Law, except that the worker does not
agree to renew the contract even though the employing unit maintains the same
conditions as, or offers better conditions than, the ones stipulated in the
previous contract;
(6)
The labor contract is terminated pursuant to the provisions of Subparagraph (4)
or (5) of Article 44 of this Law; or
(7)
Under any other circumstances provided for by laws or administrative
regulations.
Article 47 Financial
compensation shall be paid on the basis of the number of years a person works
in a unit, the rate being one month’s salary for the work of one full year. If
he has worked for six months or more but less than one year, the time shall be
calculated as one year; and if he has worked for less than six months, he shall
be paid half of his monthly salary as financial compensation.
If
the monthly salary of a worker is three times the average monthly salary of the
workers of the region for the previous year, which is published by the people’s
government of the municipality directly under the Central Government or by that
of the city divided into districts where the employing unit is located, the
rate for his financial compensation payable shall be three times the average
monthly salary of the workers, and the number of years involved shall not
exceed 12 years.
For
the purposes of this Article, the monthly salary means the average of a given
worker’s monthly salary for the 12 months prior to the revocation or
termination of the labor contract.
Article 48 Where
an employing unit revokes or terminates a labor contract in violation of the
provisions of this Law and the worker involved demands continued performance of
the contract, the employing unit shall continue performing the same. If the
worker does not demand so or if it becomes impossible for continued performance
of the labor contract, the employing unit shall pay compensation pursuant to
the provisions in Article 87 of this Law.
Article 49 The
State takes measures to establish and improve an inter-regional system to
ensure that a worker’s social insurance account is continued when he is
transferred to another region.
Article 50 An
employing unit shall issue a certificate of revocation or termination of the
labor contract at the time of its revocation or termination and shall, within
15 days, undergo the formalities for the transfer of the worker’s personal file
and social insurance account.
The
worker shall hand over the matters related to his work as agreed upon by both
parties. If the employing unit needs to pay financial compensation to the
worker according to the relevant provisions of this Law, it shall make such
payment upon completion of the procedure for handover of the work-related
matters.
The
employing unit shall keep the copy of a revoked or terminated labor contract
for at least two years for reference.
Chapter
V
Special
Provisions
Section
1
A
Collective Contract
Article 51 The
employees of an enterprise as one party and the employing unit as the another
may, through negotiation on an equal basis, conclude a collective contract on
matters relating to labor remuneration, working hours, rest and vocation,
occupational safety and health, insurance, welfare benefits, etc. The draft
collective contract shall be submitted to the worker’s congress or to all the
employees for discussion and adoption.
A
collective contract shall be concluded by the trade union on behalf of the
employees of the enterprise with the employing unit. In an enterprise where a
trade union has not yet been set up, such a contract shall be concluded with
the employing unit by the representatives elected by the workers under the
guidance of the trade union at a higher level.
Article 52 The
employees of an enterprise as one party may conclude special collective
contracts with the employing unit in respect of occupational safety and health,
protection of the rights and interests of female employees, wage adjustment
mechanism, etc.
Article 53 In
regions at or below the county level, industry-wide or region-wide collective
contracts may be concluded between the trade unions and the representatives of
the enterprises engaging in such industries as construction, mining and
catering service.
Article 54 After
conclusion, a collective contract shall be submitted to the administrative
department of labor and it shall become valid if the department raises no
objection within 15 days from the date it receives the text of the labor
contract.
A
collective contract concluded in accordance with law is binding on the
employing unit and the workers. An industry-wide or region-wide collective
contract is binding on the employing units and the workers engaged in a given
local industry or a given region.
Article 55 The
rates for labor remuneration and the standards for working conditions, etc.
stipulated in a collective contract shall not be lower than the minimum rates
and standards prescribed by the local People’s government. The rates for labor
remuneration and standards for working conditions, etc. stipulated in the labor
contract between an employing unit and a worker shall not be lower than those
stipulated in the collective contract.
Article 56 Where
an employing unit breaches the collective contract and infringes upon the labor
rights and interests of the workers, the trade union concerned may, in accordance with law, demand that the employing unit
assume liability. If a dispute arise over the performance of the collective
contract and cannot be resolved through consultation, the trade union may apply
for arbitration or bring a lawsuit in accordance with law.
Section
2
Labor
Dispatch
Article 57 A
labor-dispatching unit shall be established in
accordance with the relevant provisions in the Companies Law, and its
registered capital shall be not less than RMB 500,000 yuan.
Article 58 For
the purposes of this Law, a labor-dispatching unit is an employing unit which
performs the obligation of an employing unit to the workers. In the labor
contract concluded between the labor-dispatching unit and the workers to be
dispatched shall, in addition to the terms specified in Article 17 of this Law,
be specified such terms as the units to which the workers are to be dispatched,
the period of dispatch and the specific jobs.
The
labor-dispatching unit shall conclude with the workers to be dispatched a
fixed-term labor contract for a period of not less than two years and shall pay
labor remuneration on a monthly basis. During the intervals when there is no
work to do, the labor-dispatching unit shall pay labor remuneration on a
monthly basis at the minimum wage rate prescribed by the people’s government of
the place where the workers are working.
Article 59 When
dispatching workers, the labor-dispatching unit shall conclude an agreement on
labor dispatch with the unit that receives the workers under the dispatch
arrangement ( hereinafter referred to as the receiving
unit). In the agreement on labor dispatch shall be stipulated the jobs
dispatched to, the number of persons, the period for dispatch, the amounts and
methods of payment of labor remuneration and social insurance premiums, and the
liability for breach of the agreement.
An receiving unit
shall decide with the labor-dispatching unit on the period of dispatch based on
the actual need for jobs and shall not divide a continuous period of employment
in order to conclude a number of short-term agreements.
Article 60 The
labor-dispatching unit shall inform the workers to be dispatched of the content
of the agreement on labor dispatch.
The
labor-dispatching unit shall not pocket the labor remuneration that the
receiving unit pays to the workers in accordance with the agreement on labor
dispatch.
The
labor-dispatching unit and the receiving unit may not charge any fees from the
workers dispatched.
Article
61
If a labor-dispatching unit dispatches workers to a receiving unit located in
another place, the labor remuneration and working conditions to be enjoyed by
the workers dispatched shall be provided in conformity with the rates and
standards of the place where the receiving unit is located.
Article 62 The
receiving unit shall perform the following obligations:
(1)
to apply the labor standards of the State and provide
the necessary working conditions and occupational protection;
(2)
to inform the dispatched workers of the job
requirements and labor remuneration;
(3)
to give overtime pay and performance bonuses and
provide welfare benefits related to specific posts;
(4)
to provide the dispatched workers training that is
necessitated by the job they are on; and
(5)
to apply a regular wage adjustment mechanism in case
of continued employment.
The
receiving unit may not re-dispatch the workers to another
employing units.
Article 63 Dispatched
workers shall enjoy the right of equal pay for equal work as the workers of the
receiving unit do. If a receiving unit has no workers holding the same kind of
posts, labor remuneration shall be determined in light of that paid to the
workers holding the same or similar posts at the place where the receiving unit
is located.
Article 64 The
dispatched workers shall have the right, in accordance with law, to join the
trade union of the labor-dispatching unit or the receiving unit or to organize
a trade union, in order to protect their own legitimate rights and interests.
Article 65 Dispatched
workers may have their labor contracts with the labor-dispatching unit revoked
pursuant to the provisions in Article 36 or 38 of this Law.
If
a dispatched worker is in any of the circumstances specified in Article 39 and
Subparagraph (1) or (2) of Article 40 of this Law, the receiving unit may send
him back to the labor-dispatching unit, which may have the labor contract with
him revoked in accordance with the relevant provisions of this Law.
Article 66 Workers
are dispatched generally for temporary, auxiliary or substitute jobs.
Article 67 No
employing unit may establish labor-dispatching units to dispatch workers to its own unit or to its subordinate units.
Section
3
Part-Time
Employment
Article 68 Part-time employment is a form of employment under which
remuneration is chiefly calculated by the hour and the workers generally work
for not more than 4 hours per day in average and not more than an aggregate of
24 hours per week for the same employing unit.
Article 69 The
two parties to part-time employment may conclude an oral agreement.
A
worker in part-time employment may conclude a labor contract with one or more
employing units; however, the labor contract concluded later may not prejudice
the performance of the one concluded earlier.
Article 70 The
two parties to part-time employment may not conclude an agreement on probation
period.
Article 71 Either
of the two parties to part-time employment may give a notice to the other party
at any time to terminate the employment, and in such a case the employing unit
shall not pay any financial compensation.
Article 72 The
hourly remuneration rate for part-time employment may not be lower than the
minimum hourly wage rate specified by the people’s government of the place
where the employing unit is located.
Labor
remuneration settlement and payment cycle for part-time employment may not
exceed 15 days.
Chapter
VI
Supervision
and Inspection
Article 73 The
administrative department of labor under the State Council shall be in charge
of supervision over and administration of the implementation of the labor
contract system nationwide.
The
administrative departments of labor of the local people’s governments at or
above the county level shall be in charge of supervision over and
administration of the implementation of the labor contract system in their own
administrative areas.
In
supervising and administering the implementation of the labor contract system,
the administrative departments of labor of the local people’s governments at or
above the county level shall listen to the opinions of the trade unions, the
enterprise representatives and the departments in charge of the specific
industries.
Article 74 The
administrative departments of labor of the local people’s governments at or
above the county level shall, in accordance with law, supervise and inspect the
implementation of the labor contract system in respect of the following
matters:
(1)
the rules and regulations formulated by the employing
units that have a direct bearing on the immediate interests of the workers, and
the implementation of such rules and regulations;
(2)
conclusion of labor contracts between employing units
and workers and their revocation;
(3)
compliance with the relevant regulations on labor
dispatch by the labor-dispatching units and the receiving units;
(4)
compliance by the employing units with the State
regulations on working hours, rest and vocation of workers;
(5)
payment by the employing units of labor remuneration
as stipulated in the labor contracts, and their compliance with the minimum
wage standards;
(6)
purchase of the various types of social insurance by the employing units for
the workers, and payment of social insurance premiums by the same; and
(7)
other matters subject to supervision and inspection
concerning labor as specified in laws and regulations.
Article 75 When
the administrative department of labor of a local people’s government at or
above the county level conducts supervision and inspection, it shall have the
right to check the materials relating to labor contracts and collective
contracts and to conduct on-the-spot inspection of the workplaces, and both the
employing units and the workers shall truthfully provide relevant information
and materials.
When
staff members of an administrative department of labor conduct supervision and
inspection, they shall produce their papers, exercise their duties and powers
according to law and enforce the law in a polite manner.
Article 76 The
departments in charge of supervision over and administration of construction,
health, work safety, etc. under the people’s governments at or above the county
level shall, within the limits of their respective duties, supervise and
administer the implementation of the labor contract system by the employing
units.
Article 77 A
worker whose legitimate rights and interests are infringed upon shall have the
right to request the relevant department to deal with such infringement
according to law, or to apply for arbitration or bring a lawsuit according to
law.
Article 78 The
trade unions shall protect the legitimate rights and interests of the workers
in accordance with law and supervise the performance of labor contracts and
collective contracts by the employing units. Where an employing unit violates
the labor laws or regulations or breaches a labor contract or a collective
contract, the trade union concerned shall have the right to put forward its
opinions or request rectification. Where a worker applies for arbitration or
brings a lawsuit, the trade union concerned shall provide him with support and
assistance in accordance with law.
Article 79 All
organizations and individuals shall have the right to inform against violations
of this Law, and the administrative departments of labor of the people’s
governments at or above the county level shall verify and deal with such
violations in a timely manner and reward the ones that perform meritorious
service.
Chapter
VII
Legal
Responsibility
Article 80
Where the rules and regulations of an employing unit that have a direct bearing
on the immediate interests of workers are in contravention with the provisions
of laws and regulations, the administrative department of labor shall order it
to rectify and shall give it a warning. If harm is done to a worker, the
employing unit shall be liable for compensation.
Article 81 Where
the requisite terms provided for by this Law are not clearly stated in the text
of a labor contract provided by an employing unit or an employing unit fails to
deliver a copy of the labor contract to the worker, the administrative
department of labor shall order it to rectify. If harm is done to the worker,
the unit shall be liable for compensation.
Article 82
Where an employing unit fails to conclude a written labor contract with a
worker for more than a month but less than a year from the date it starts
employing him, it shall pay the worker two times his salary for each month.
Where
an employing unit fails to conclude an open-ended labor contract with a worker
in violation of the provisions of this Law, it shall pay the worker two times
his salary for each month, starting from the date on which an open-ended labor
contract should be concluded.
Article 83 Where
in violation of the provisions of this Law, an employing unit reaches an
agreement with a worker on a probation period, the administrative department of
labor shall order it to rectify. If the illegal agreement on a probation period
is executed, the employing unit shall pay compensation to the worker at the
rate of the worker’s monthly salary following the completion of his probation,
for the period of performance by the worker in excess of the statutory
probation period.
Article 84
Where an employing unit, in violation of the provisions of this Law, detains a
worker’s resident identity card or other certificates, the administrative
department of labor shall order it to return the same to the worker within a
time limit and impose on it a penalty in accordance with the provisions of
relevant laws.
Where
an employing unit, in violation of the provisions of this Law, collect money or
things of value from the workers in the name of guaranty or in other names, the
administrative department of labor shall order it to return the same to the
workers within a time limit and impose on it a fine at the rate of not less
than 500 yuan but not more than 2,000 yuan for each person from whom it has collected money or
things of value; if harm is done to the workers, it shall be liable for
compensation.
Where
an employing unit detains a worker’s personal file or other articles when the
worker has his labor contract revoked or terminated in accordance with law, it
shall be penalized in accordance with the provisions in the preceding
paragraph.
Article 85
Where an employing unit commits one of the following acts, the administrative
department of labor shall order it to pay the labor remuneration, give overtime
pay or make other financial compensation within a time limit; if the labor
remuneration is lower than the local minimum wage rate, it shall pay the
difference. If it fails to make such payment at the expiration of the time
limit, it shall be ordered to pay an additional compensation to the worker at a
rate of not less than 50 percent but not more than 100 percent of the amount
payable:
(1)
failing to pay a worker his labor remuneration on time
and in full as stipulated in the labor contract or as prescribed by the State;
(2)
paying labor remuneration at a rate below the local
minimum wage rate;
(3)
arranging overtime work but giving no overtime pay; or
(4)
failing to pay the worker financial compensation pursuant
to the provisions of this Law when revoking or terminating a labor contract.
Article 86 Where a labor contract is determined to be invalid in
accordance with the provisions of Article 26 of this Law, which causes harm to
the other party, the party in default shall be liable for compensation.
Article 87
Where an employing unit revokes or terminates a labor contract in violation of
the provisions of this Law, it shall pay compensation to the worker two times
the rate of financial compensation specified in Article 47 of this Law.
Article 88
Where an employing unit commits one of the following acts, it shall be
subjected to an administrative sanction in accordance with law; if a criminal
is constituted, it shall be investigated for criminal responsibility according
to law; if harm is done to a worker, the employing unit shall be liable for
compensation:
(1)
forcing a person to work by resorting to violence,
intimidation or illegal restriction of personal freedom;
(2)
giving instructions in violation of rules and
regulations or giving peremptory orders to a worker to perform hazardous
operations, which endanger his personal safety;
(3)
humiliating, giving corporal punishment to, beating ,
illegally searching or detaining a worker; or
(4)
providing a worker with hazardous working conditions
or a severely polluted environment, thus causing serious harm to the physical
or mental health of the worker.
Article 89 Where
in violation of the provisions of this Law, an employing unit fails to issue to
a worker a written statement proving the revocation or termination of the labor
contract, the administrative department of labor shall order it to rectify. If
harm is caused to the worker, the unit shall be liable for compensation.
Article 90
Where a worker revokes the labor contract in violation of the provisions of
this Law or breaches the confidentiality obligation or competition restriction
stipulated in the labor contract, thus causing losses to the employing unit, he
shall be liable for compensation.
Article 91
Where an employing unit recruits a worker whose labor contract with another
employing unit has not yet been revoked or terminated, and thus causing losses
to the other employing unit, it shall bear joint and several liability
for compensation.
Article 92
Where a labor-dispatching unit violates the provisions of this Law, the
administrative department of labor and other competent departments concerned
shall order it to rectify. If the circumstances are serious, a fine shall be
imposed on it, with not less than 1,000 yuan but not
more than 5,000 yuan for each person,
and its business license shall be revoked by the administrative department for
industry and commerce. If harm is caused to the dispatched workers, the
labor-dispatching unit and the labor-receiving unit shall bear joint and
several liability for compensation.
Article 93 An
employing unit without the lawful business qualifications shall, in accordance
with law, be investigated for legal responsibility for its illegal or criminal
acts. If the workers have done their work, the employing unit
or its sponsor(s) shall pay them labor remuneration, financial compensation and
damages in accordance with the relevant provisions of this Law. If
losses are caused to the workers, the unit shall be liable for compensation.
Article 94
Where an individual that contracts for the operation of a business recruits
workers in violation of the provisions of this Law, thus causing losses to the
workers, the organization giving out the contract and the individual contractor
shall bear joint and several liability for compensation.
Article 95 Where
an administrative department of labor or another competent department concerned
or its staff member neglects its/his duties and fails to perform the statutory
duties, or exercises its/his functions and powers in violation of law, thus
causing losses to a worker or an employing unit, it /he shall be liable for
compensation; the person directly in charge and the other persons directly
responsible shall be given administrative sanctions according to law; if a
crime is constituted, it/he shall be investigated for criminal responsibility
according to law.
Chapter
VIII
Supplementary
Provisions
Article 96
Where there are stipulations made in other laws or administrative regulations or
by the State Council to govern the conclusion, performance, modification,
revocation or termination of labor contracts between public institutions and
the persons employed by them under the employment system, the provisions there
shall prevail; otherwise, the relevant provisions in this Law shall apply.
Article 97 A labor contract which is concluded in accordance with law
prior to implementation of this Law and remains valid as of the date this Law
goes into effect shall continue to be performed. With respect to the number of
times for consecutive conclusion of a fixed-term labor contract, as provided
for in Subparagraph (3) of the second paragraph in Article 14 of this Law, it
shall begin to be calculated from the time the labor contract is renewed after
this Law goes into effect.
Where
a labor relationship is established prior to the implementation of this Law but
no written labor contract is concluded yet, such a contract shall be concluded
within one month from the date this Law goes into effect.
Where
a labor contract which remains valid as of the date this Law goes into effect
is revoked or terminated thereafter, financial compensation shall be paid
pursuant to the provisions of Article 46 of this Law, and the number of years
for which financial compensation should be paid shall be calculated from the
date this Law goes into effect; where the employing unit should pay financial
compensation to the worker concerned according to the relevant regulations at
the time before this Law goes into effect, it shall do so in accordance with
the relevant provisions then.
Article 98 This
Law shall go into effect as of January 1, 2008.