Labor law of 2008

Labor Contract Law of People's Republic of ChinaTABLE OF CONTENTSCHAPTER I GENERAL PROVISIONSCHAPTER II CONCLUSION OF LABOR CONTRACTSCHAPTER III PERFORMANCE AND MODIFICATION OF LABOR CONTRACTSCHAPTER IV DISSOLUTION AND TERMINA TION OF LABOR CONTRACTSCHAPTER V SPECIAL PROVISIONSSECTION I COLLECTIVE CONTRACTSSECTION II LABOR DISPATCHSECTION III PART-TIME EMPLOYMNETCHAPTER VI SUPERVISION AND INSPECTIONCHAPTER VII LEGAL RESPONSIBILITYCHAPTER VIII SUPPLEMENTARY PROVISIONSCHAPTER I GENERAL PROVISIONSArticle 1 This Law is formulated in order to improve the labor contract system, clarify rights and obligations of both parties to a labor contract, protect the legitimate rights and interests of laborers, and establish and develop harmonious and stable labor relationship.Article 2 This Law applies to the establishment of labor relationship between enterprises, individual economic organizations, private non-enterprise units etc. (hereinafter referred to as “employing units”) and laborers within the territory of the People‟s Republic of China , and the conclusion, performance, modification, dissolution or termination of their labor contracts.Where state organs, institutional organizations, societies establish labor relationship with laborers, the conclusion, performance, modification, dissolution or termination of labor contracts thereof shall be executed in accordance with this Law.Article 3 The conclusion of a labor contract shall follow the principles of legality, fairness, equality and voluntariness, unanimity through consultation and good faith.A labor contract lawfully concluded shall possess legal binding force. The employing unit and the laborer shall fulfill the obligations stipulated in the labor contract.Article 4 The employing unit shall establish and improve rules and regulations in accordance with the law so as to ensure that laborers enjoy the right to work and fulfill labor obligations.When the employing unit enacts, modifies or decides on rules and regulations or major matters with direct bearing on the vital interests of laborers such as labor remuneration, working hours, rest and vacations, occupational safety and health, insurance and welfare, occupational training, labor disciplines and labor quota management etc., it shall refer the same to the congress of staff and workers or all the staff and workers, which shall put forward proposals and comments in relation thereto after discussion, and then the same shall be determined through consultation with trade union or representatives of staff and workers on an equal footing.In the implementation of rules and regulations and decisions on major matters of an employing unit, if its trade union or staff and workers believe there is inappropriate provision therein, they shall have the right to put forward the same to it, and the modification and improvement shall be made through consultation.firstThe rules and regulations and decisions on major matters with direct bearing on the vital interests of laborers shall be publicized or communicated to laborers.Article 5 The labor administrative authority under the people‟s government at or above the county level, together with the trade union and representatives of the enterprise, shall establish and improve the three-party system of labor relationship coordination, and conduct researches jointly to solve major problems in relation to labor relationshipArticle 6 The trade union shall assist and guide laborers to conclude and perform labor contracts with employing unit in accordance with the law, and establish the collective consultation system with the employing unit in order to safeguard the legitimate rights and interests of laborers.CHAPTER II CONCLUSION OF LABOR CONTRACTSArticle 7 The employing unit shall establish the labor relationship with the laborer from the date of employment. The employing unit shall keep a register of employed workers and staff, for reference and inspection purposes.Article 8 Where the employing unit recruits the laborer, it shall inform the laborer faithfully of working contents, working conditions, working place, occupational hazards, work safety situation, labor remuneration and other information that the laborer requests to know about; the employing unit has the right to acquaint with basic information of the laborer, which are directly relating to the labor contract, and the laborer shall provide it in accordance with facts.Article 9 Where the employing unit recruits a laborer, it shall not detain ID card or other certificates of the laborer , and shall not require the laborer to provide any security or collect any cash or property from the laborer in other names.Article 10 A written labor contract shall been concluded to establish the labor relationship.Where the labor relationship has been established but without a written labor contract, the employing unit and the laborer shall conclude the labor contract within one month from the date of employment.Where the employing unit and the laborer conclude a labor contract prior to employment, the labor relationship shall be established from the date of employment.Article 11 Where the employing unit fails to conclude a labor contract with the laborer at the time of employment, and the agreement on the treatment to the laborer is not clear, the treatment to the newly recruited laborer shall be executed in accordance with the standards stipulated in collective contracts; where there are no collective contracts or collective contracts set forth no such provisions, the principle of equal pay for equal work shall be followed.Article 12 Labor contracts shall be divided into: labor contracts with fixed term, labor contracts with flexible term or labor contracts taking the completion of certain work tasks as a term.Article 13 A labor contract with a fixed term refers to the labor contract with the termination date agreed on by the employing unit and the laborer.Where the employing unit and the laborer reach agreement through consultation, a labor contact with a fixed term may be concluded.Article 14 A labor contract with a flexible term refers to the labor contract without determinate time of termination agreed on by the employing unit and the laborer.secondWhere the employing unit and the laborer reach agreement through consultation, a labor contact with a flexible term may be concluded. Under any of the following circumstances, if the laborer requests or agrees to renew, conclude the labor contract, a labor contract with a flexible term shall be concluded except that the laborer requests to conclude a labor contract with a fixed term:(1) Where the laborer has kept working in the same employing unit for ten years or more;(2) Where the laborer has kept working in the same employing unit for ten years or more, and the gap between his/her age and statutory retirement age is less than ten yeas when the employing unit puts the labor contract system into practice for the first time, or when the labor contract is renewed due to system reform of state-owned enterprises; and(3) Where the renewal is made after a labor contract with a fixed term is concluded consecutively twice, and there is no any circumstance of the laborer stipulated in Article 39 and Item 1, Item 2 of Article 40 herein.Where the employing unit fails to conclude a written labor contract with the laborer for one year or more as of the date of employment, it shall be deemed that the employing unit and the laborer have concluded a labor contract with a flexible term.Article 15 A labor contract taking the completion of certain work tasks as a term refers to the labor contract, in which the employing unit and the laborer agree that the completion of certain work is the term of the contract.Where the employing unit and the laborer reach agreement through consultation, a labor contact taking the completion of certain work tasks as a term may be concluded.Article 16 A labor contract shall become effective upon the signature or seal on the text by the employing unit and the laborer subject to their unanimity through consultation.Either the employing unit or the laborer shall keep one original of the contract respectively.Article 17 A labor contract shall contain the following clauses:(1) Name, domicile and legal representative or main person-in-charge of the employing unit;(2) Name, domicile and ID card number or other valid certificates‟ number of the laborer;(3) Term of the labor contract;(4) Working contents and working place;(5) Working hours and rest and vacations;(6) Labor remuneration;(7) Social insurance;(8) Labor protection, working conditions and protection from occupational hazards;(9) Other matters which shall be included in a labor contract in accordance with laws and administrative rules and regulations.Apart from the mandatory clauses stipulated in the previous paragraph, the employing unit and the laborer may agree on other matters such as probation period, training, keeping secrets, supplementary insurance and welfare treatment etc. through consultation in the labor contract.Article 18 If disputes arise due to the unclearness of stipulations on labor remuneration and working conditions etc. in a labor contract, the employing unit and the laborer may start a new consultation; in case no agreement is reached, the stipulations in collective contracts shall apply; in case of no collective contracts or no stipulations on labor remuneration in collective contracts, the principle of equal pay for equal work shall be followed; in case of no collective contracts or no stipulations on standards for working conditions etc. in collective contracts, the relevant provisions of the State shall apply.thirdArticle 19 Where the term of a labor contract is no less than three months and less than one year, the probation period shall not exceed one month; where the term of a labor contract is no less than one year and less than three years, the probation period shall not exceed two months; the probation period of a labor contract with a fixed term no less than three years and a labor contract with a flexible term shall not exceed six months.One and the same employing unit shall stipulate on the probation with one and the same laborer no more than once.No probation period shall be stipulated in a labor contract taking the completion of certain work tasks as a term or a labor contract whose term is less than three months.Probation period shall be included in the term of a labor contract. Where a labor contract stipulates only the probation period but no term, no probation shall be deemed existing, and the period stipulated shall be the term of the labor contract.Article 20 The wages of a laborer in the probation period shall be no less than the lowest wage level for the same position in the employing unit or eighty percent of the wages stipulated in the labor contract, and shall not be no less than the minimum wage of the locality of the employing unit.Article 21 In the probation period, the employing unit shall not dissolve a labor contract except that there are circumstances of laborers stipulated in Article 39 and Item 1, Item 2 of Article 40 herein. Where the employing unit dissolves a labor contract in the probation period, it shall explain reasons to the laborer.Article 22 Where the employing unit provides special training fund to give the laborer professional technical training, it may conclude an agreement with the laborer on the service period.If the laborer violates the stipulation on service periods, he/she shall pay liquidated damages to the employing unit in accordance with agreement. The amount of liquidated damages agreed shall not exceed the training expenses provided by the employing unit. The amount of liquidated damages that the employing unit requires the laborer to pay shall not exceed the training expense attributed in proportion to the service period unfinished.The agreement on a service period between the employing unit and a laborer shall be without prejudice to the increase of the laborer‟s remuneration in the service period in accordance with the wage adjustment system of the employing unit.Article 23 The employing unit and a laborer may agree on keeping trade secrets of the employing unit and confidential issues concerning intellectual property rights in a labor contract.The employing unit may stipulate non-competition clauses with the laborer who is subject to confidentiality obligations in the labor contract or confidentiality agreement, and stipulate that it shall pay the laborer concerned economic compensation monthly within the non-competition period after the dissolution or termination of the labor contract. If the laborer violates the non-competition stipulations, he/she shall pay the employing unit liquidated damages as agreed.Article 24 Personnel subject to non-competition clauses are limited to senior managers, senior technicians and other staff members subject to confidentiality obligations. The scope, region and term of non-competition shall be agreed on by the employing unit and laborers, and non-competition stipulations shall not violate laws and regulations.After the dissolution or termination of labor contracts, the personnel stipulated in the previous paragraph shall not work in other competitive employing units which produce or manage products or engage in business of the same kind with that of the original employing unit, and they themselves shall not produce or manage products or engage in business offourththe same kind with that of the original employing unit, but the term of such restriction shall not exceed two years.Article 25 Except as otherwise provided in Article 22 and Article 23 herein, the employing unit shall not stipulate with laborers liquidated damages borne by laborers.Article 26 Under any of the following circumstances, a labor contract will be wholly or partially invalid:(1) Where a labor contract is concluded or modified by one party against the other party's true intentions through the use of fraud, coercion or exploitation of the other party's unfavorable position;(2) Where the employing unit exempts itself from its responsibility and deprives the laborer of his/her rights;(3) Violating mandatory provisions of laws and administrative regulations.In case of any dispute concerning the invalidity or partial invalidity of a labor contract, it shall be confirmed by a labor dispute arbitration committee or a people's court.Article 27 Where part of a contract is invalid, but the validity of the remaining part keeps unaffected, the remaining part shall remain valid.Article 28 Where the voidance of a labor contract is confirmed, if the laborer has provides his/her labor, the employing unit shall pay labor remuneration to the laborer. The amount of labor remuneration shall be determined by reference to the labor remuneration of laborers in positions of the same or the similar kind in the employing unit.CHAPTER III PERFORMANCE AND MODIFICATION OF LABOR CONTRACTSArticle 29 The employing unit and the laborer shall fully perform their respective obligations in accordance with the stipulations of the labor contract.Article 30 The employing unit shall pay labor remuneration timely in full in accordance with the stipulations of labor contracts and the State regulations.Where the employing unit delays or deducts labor remuneration, laborers may apply to the local people‟s court for a payment order, and the people‟s court shall issue the payment order in accordance with the law.Article 31 The employing unit shall strictly comply with the standard of labor quota and shall not compel or in a disguised form compel laborers to work overtime. Where the employing unit arranges overtime work, it shall pay overtime payments to laborers in accordance with relevant regulations of the State.Article 32 Where the management personnel of the employing unit command the operation in violation of rules and regulations or force laborers to run risks in operation, laborers shall have the right to refuse to operate, which shall not been deemed as behavior in violation of labor contracts.Laborers shall have the right to criticize, report or file charges against working conditions endangering the safety of their life and health.Article 33 Where the employing unit modifies matters on its name, legal representative, major persons in charge or investors etc., the performance of a labor contract shall not be affected.Article 34 Where the employing unit is merged or separated, the original labor contract shall remain valid and the employing unit which succeeds to the rights and obligations shall continue to perform the labor contract.fifthArticle 35 A labor contract may be modified if the employing unit and the laborer reach agreement through consultation. The modification of a labor contract shall be conducted in a written form.The employing unit and the laborer shall each hold one copy of the modified labor contact.CHAPTER IV DISSOLUTION AND TERMINATION OF LABOR CONTRACTSArticle 36 A labor contract may be dissolved if the employing unit and the laborer reach agreement through consultation.Article 37 A laborer may dissolve a labor contract by giving a written notice to the employing unit thirty days in advance. In the probation period, a laborer may dissolve the labor contract by giving notice to the employing unit three days in advance.Article 38 A laborer may dissolve a labor contract with the employing unit under any of the following circumstances:(1) Where the employing unit fails to provide the agreed working protection and working conditions;(2) Where the employing unit fails to pay labor remuneration timely in full;(3) Where the employing unit fails to pay the social insurance premium for the laborer in accordance with laws and regulations;(4) Where rules and regulations of the employing unit violate the provisions of laws and regulations and harm rights and interests of laborers;(5) Where the labor contract is invalid due to the circumstances stipulated in Paragraph 1 of Article 26 herein; and(6) Other circumstances stipulated by laws and administrative regulations under which the laborer may dissolve the labor contract.Where the employing unit forces the laborer to work by means of violence, coercion or illegal restriction of personal freedom, or the personal safety of the laborer is endangered because the employing unit commands the operation in violation of rules and regulations or force laborers to run risks in operation, the laborer may dissolve the labor contract at once, and need not notify the employing unit in advance.Article 39 The employing unit may dissolve a labor contract with a laborer under any of the following circumstances:(1) To be proved not up to the requirements for employment during the probation period;(2) To seriously violate the rules and regulations of the employing unit;(3) To cause great losses to the employing unit due to serious dereliction of duty or engagement in malpractice for selfish ends;(4) To establish labor relationship with other employing unit, as causes serious influence on the completion of work tasks, or refuse to rectify when the employing unit so requests;(5) The labor contract is invalid due to the circumstance stipulated in Item 1, Paragraph 1 of Article 26 herein;(6）To be investigated for criminal responsibilities in accordance with the law.Article 40 Under any of the following circumstances, the employing unit may dissolve alabor contract after a written notice is given to the laborer thirty days in advance oradditional wages of one month is paid to the laborer:(1) Where a laborer is unable to take up his/her original work or any new work arranged by the employing unit after the completion of the prescribed period of his/her medical treatment for illness or injury not suffered at work;(2) Where a laborer is unqualified for his/her work and remains unqualified even after receiving training or an adjustment to any other work post;(3) Where no agreement on modification of the labor contract can be reached through consultation by the employingsixthunit and the laborer when the objective conditions taken as the basis for the conclusion of the contract have greatly changed so that the original labor contract can no longer be performed.Article 41 Under any of the following circumstances, if the reduction of twenty or more staff members and workers is necessary，or less than twenty staff members and workers are to be dismissed but they account for ten percent of the total of staff and workers, the employing unit may make such reduction after it has explained the situation to the trade union or all of its staff and workers thirty days in advance, solicited opinions from them and reported the personnel reduction plan to the labor administrative authority.(1) Where the employing unit is reorganized in accordance with Enterprise Insolvency Law;(2) Where the employing unit runs into great difficulties in production and management;(3) Where reduction in labor force is still necessary after labor contracts are modified due to production switch, great technical innovation and adjustment of management methods;(4) Other circumstances under which original labor contracts can no longer be performed because the objective economic conditions taken as the basis for the conclusion of labor contracts have greatly changed.In the process of personnel reduction, the following laborers shall have the priority to be retained:(1) Who have concluded labor contracts with a relatively long fixed term with the employing unit;(2) Who have concluded labor contracts with a flexible term with the employing unit;(3) In whose family there are no other members in employment and there are elders or minors who need support.Where the employing unit is to recruit personnel within six months after the personnel reduction in accordance with Paragraph 1 of this Article, the reduced personnel shall be informed of that and shall have the priority to be re-employed under equal conditions.Article 42 The employing unit shall not dissolve a labor contract with a laborer under any of the following circumstances in accordance with Article 40 and Article 41 herein:(1) To be a laborer involved in operations with occupational hazards failing to accept check-up for occupational health before employment departure, or to be a patient doubted with occupational disease within the period of diagnosis or within the period of medical observation;(2) To be confirmed to have totally or partially lost the ability to work due to occupational diseases or work-related injuries suffered during the employing with the employing unit;(3) To be receiving medical treatment for diseases or injuries within the prescribed period of time;(4) To be a female staff member or worker during pregnant, puerperal, or breast-feeding period;(5) To be a laborer who has been working in the employing unit for fifteen years or more, what‟s more, the gap between whose age and statutory retirement age is less than five years.(6) Other circumstances stipulated by laws and administrative regulations.Article 43 Where the employing unit dissolves a labor contract unilaterally, it shall notify the trade union of the reasons in advance. If the employing unit violates the provisions of laws, administrative regulations or the stipulations of labor contracts, the trade union shall have the right to request for rectification. The employing unit shall study the opinions of the trade union and notify the trade union of the processing result in writing.Article 44 Under any of the following circumstances, a labor contract shall be terminated.(1) Where the labor contract expires;(2) Where the laborer has begun enjoying the treatment of basic pension insurance in accordance with the law;(3) Where the labor passes away, or the people‟s court announces his/her death or disappearance;(4) Where the employing unit is announced bankrupt in accordance with the law;(5) Where the employing unit…s business license is revoked, it is ordered to be closed, dissolved or the employing unit itself decides to dissolve ahead of schedule ; andseventh(6) Other circumstances stipulated by laws and administrative regulations.Article 45 Where a labor contract expires, yet there is any of the circumstances stipulated in Article 42 herein, the labor contract shall be renewed and shall not be terminated until the corresponding circumstance disappears. However, the termination of a labor contract of a laborer who has partially lost the ability to work as specified in Item 2 of Article 42 herein shall be handled in accordance with the State regulations on work-related injury insurance.Article 46 Under any of the following circumstances, the employing unit shall pay economic compensation to laborers:(1) Where a laborer dissolves a labor contract in accordance with Article 38 herein;(2) Where the employing unit proposes the dissolution of a labor contract and the labor contract is dissolved upon agreement reached by the employing unit and the laborer through consultation in accordance with Article 36 herein;(3) Where the employing unit dissolves a labor contract in accordance with Article 40 herein;;(4) Where the employing unit dissolves a labor contract in accordance with Paragraph 1of Article 41 herein;(5) Where a labor contract with a fixed term is terminated in accordance with Item 1 of Article 44 herein, except that the employing unit maintains or improves the conditions stipulated in the original labor contract and the laborer does not agree to renew the labor contract;(6) Where a labor contract is terminated in accordance with Item 4 or Item 5 of Article 44 herein;(7) Other circumstances stipulated by laws and administrative regulations.Article 47 The laborer shall be paid economic compensation based on his/her length of service with the employing unit at the rate of one-month salary for service of each full year. Any length of service not less than six months and less than one year shall be counted as one year; the laborer with length of service less than six months shall be paid economic compensation equal to half of his/her monthly salary.If the monthly salary of a laborer is higher than three times the average monthly salary during the preceding year of employees in the muni cipality or city divided into districts of the employing unit‟s locality published by the people‟s government thereof, the standard for the economic compensation paid to him/her shall be three times the average monthly salary of employees and shall be for not more than 12 years of work.“Monthly salary” of this Article refers to the laborer‟s average monthly salary of twelve months prior to the dissolution or termination of his/her labor contract.Article 48 Where an employing unit dissolves or terminates a labor contract in violation of provisions herein, the employing unit shall continue the performance of the labor contract if the laborer requests so; if the laborer does not request to continue the performance of the labor contract, or the labor contract is unsuitable to be further performed, the employing unit shall pay damages in accordance with Article 87 herein.Article 49 The State shall take measures to establish and perfect the system on the transfer and continuance of laborers‟ social insurance relationship over various regions.Article 50 When dissolving or terminating a labor contract, the employing unit shall provide the attestation for the dissolution or termination of the labor contract, and go through formalities to transfer personal archives and social insurance for the laborer within fifteen days.The laborer shall hand over his/her work as agreed on by both parties. Where the payment of economic compensation is obligatory according to relevant regulations of this Law, the employing unit shall pay such compensation to the laborer upon the completion of work handover.The employing unit shall keep the text of a labor contract which has been dissolved or terminated for no less than twoeighth。