上海市劳动合同条例(英文)

Regulations of Shanghai Municipality on Labour Contract(Adopted at the Thirty-third Session of the Standing Committee of the Eleventh ShanghaiMunicipal People's Congress on November 15, 2001)Chapter ⅠGeneral ProvisionsArticle 1For the purpose of adjusting labor relationship, establishing and upholding the labor contract system adapted to the socialist market economy, these Regulations are formulated in accordance with "The Labor Law of the People's Republic of China" and other relevant laws and administrative regulations with consideration of the actual situations in this Municipality.Article 2These Regulations apply to the employer units in the administrative area of this Municipality, including enterprises, self-employed workers, economic organizations, and state organs and institutions, and mass organizations, etc., (hereinafter jointly referred to as employer units), that establish or form labor contract relationship with the employees.Article 3The labor contract is the agreement concluded between the employee and the employer-unit that establishes labor relationship and specifies the rights and obligations of both parties.Article 4The labor contract shall be concluded in writing with the exception that is specially stipulated in these Regulations.Article 5The conclusion and alteration of the labor contract shall follow the principle of equality and negotiation to reach uniformity on one's own will, and shall satisfy the stipulations of laws, regulations and relevant rules.A labor contract shall have immediately binding force once it is legally concluded, and the parties to the contract shall perform the obligations stipulated in the labor contract.Article 6The trade union shall provide guidance and help to the employee concerning the labor contract, and supervise the employer-units in their performance of the labor contract. In case that an employer-unit infringes an employee's legitimate rights and interests, the trade union shall negotiate with the employer-unit on behalf of the employee, and protect the legitimate rights and interests of the employee in the conclusion and performance of the labor contract according to law.Article 7The administrative department of labor security shall have the duty to guide, supervise and inspect the carrying out of the labor contract system.Chapter ⅡThe Conclusion of the Labor ContractArticle 8Before the conclusion of a labor contract, the employee has the right to know the relevant regulations and rules, labor conditions and payments of the employer-unit. The employer-unit shall illustrate them strictly according to the facts.When employing laborers, the employer-unit has the right to know the health condition, knowledge and ability, and working experience of the employee. The employee shall state them strictly according to the facts.Article 9The text of the labor contract may be provided by the employer-unit, or be drawn up by both the employer and the employee. In case that the employer-unit provides the text, the principle of fairness shall be followed and shall not infringe upon the legitimate rights and interests of the employee.The labor contract shall be written in Chinese, and may be coupled with a copy in a foreign language. If both parties to the contract have otherwise agreed, their agreement may be respected. In case that the labor contract is written in both Chinese and a foreign language, and their content differs, the Chinese version shall prevail. The labor contract shall have two identical copies, each party to the contract shall hold one copy.Article 10The labor contract shall contain the following clauses:1. The valid period of the labor contract;2. The job descriptions;3. The labor protections and labor conditions;4. The payments of remuneration for labor;5. The labor disciplines;6. The conditions for the termination of the labor contract; and7. The liabilities for violation of the stipulations of the labor contract.Apart from the compulsory clauses provided in the preceding clause, the parties to the contract may form other terms through negotiation in the labor contract.Article 11The valid period of employment in the labor contract shall be classified as fixed period, no fixed period, and task/project completion period. The valid period of the labor contract shall be fixed by the employer-unit and the employee through consultation.Article 12The labor contract shall become effective upon the date of signature. In case that the parties to the contract have otherwise agreed on the effective date and conditions of the labor contract, such agreement shall be respected.Article 13The parties to a labor contract may agree upon a trial period. In case the valid period of the labor contract is within 6 months, no trial period shall be allowed. In case the valid period is over 6 months but within one year, the trial period shall not be more than one month. In case the valid period is over one year but within 3 years, the trial period shall not be more than 3 months. In case the valid period is over 3 years, the trial period shall not be more than 6 months.In case that the parties to a labor contract have only agreed upon a trial period, this trial period shall not be valid, and this trial period shall become the valid period of the labor contract.Article 14The parties to a labor contract may stipulate the service period of the laborers for whom the employer-unit paid the expenses of recruitment and employment, and training or to whom the employer-unit provided special treatment.Article 15The parties to a labor contract may stipulate the terms of confidentiality in the labor contract, or may conclude a separate confidentiality agreement. With the publication of the commercial secret, the terms of confidentiality and the terms agreed in the agreement of confidentiality shall lose their validity automatically.The parties to a labor contract may stipulate in the labor contract or the confidentiality agreement the period of time in advance that the laborer who has the obligation to keep the employer-unit's commercial secret shall give notice if the laborer requests to terminate the labor contract. However, the period of time to give notice in advance shall not be longer than 6 months. During this period, the employer-unit may take appropriate measures to separate this employee from the commercial secret.Article 16The parties to the labor contract may stipulate in the labor contract or in the confidentiality agreement a clause restricting the laborer who has the obligation to keep the employer-unit's commercial secret to engage in any competitive business, and stipulate the payment of economic compensation to the laborer upon the termination or discharge of the labor contract. The scope of that within the restraint of the engagement in competitive business shall be limited to a certain period after the laborer leaves the employer-unit during which the laborer shall not operate his own business or operate or manage the business for others in competition with the former employer-unit. The time period of the restraint of the engagement in competitive business shall be stipulated by the parties to the labor contract within a limitation to 3 years, however, with the exception that if laws or administrative regulations have provided otherwise.In case that the parties to the labor contract have stipulated the restraint of engagement in the competitive business, no period of advance notice on termination of the labor contract shall be stipulated.The stipulation of restraint of engagement in the competitive business shall not be contrary to the provisions of laws and regulations.Article 17The payment of penalty by the laborer for his act of breach of contract may only be stipulated in the labor contract under following conditions:1. Violating the term of service period; and2. Violating the term of keeping commercial secret.The amount of the penalty shall be stipulated according to the principle of being fair and reasonable.Article 18The standards of labor conditions, payments and remuneration etc. shall not be lower than the stipulations of the collective contract. If they are lower than the stipulations of the collective contract, the stipulations of the collective contract shall apply.The collective contract shall be signed according to relevant laws and regulations.Article 19At the expiration of the labor contract, with unanimity reached through consultation by both parties to the contract, the labor contract may be renewed. However, there shall be no trial-period terms in the renewed labor contract.Article 20The labor contract shall be void under any one of the following cases:1. Violating laws and administrative regulations; and2. Signed by means of fraud or duress.The avoided labor contract has no legal binding force from the inception. If a part of the labor contract has been affirmed as invalid, and if that does not affect the effectiveness of other parts, the remaining parts are still valid.The invalidity of a labor contract shall be affirmed by the labor dispute arbitration committee or a people's court.Article 21The establishment of relationship of a labor contract between the employer-unit and the laborer shall go through the employment registration procedures at the agency designated by the labor security administrative department.Chapter ⅢThe Performance and Alteration of the Labor ContractArticle 22The parties to a labor contract shall perform the labor contract according to the effective date stipulated in the contract. In case that the effective date stipulated in the labor contract differs from the actual starting date, the actual starting date shall be affirmed as the effective date.Article 23Any alteration of the labor contract shall be done only if both parties reach unanimity through consultation, and in writing. If the parties to the contract fail to reach unanimity, the labor contract shall continue to be performed, with the exception that it is otherwise provided by laws orregulations.Article 24In case of merge or split-off of the employer-unit, the labor contract shall continue to be performed by the merged or the employer-unit. The labor contract may be altered or discharged if both parties to the contract reach unanimity through consultation, if the parties to the labor contract have otherwise agreed upon, that agreement shall be respected.Article 25In case that the employer-unit that who signed the labor contract is not the actual user of the laborer, the employer-unit may have an agreement with the actual user of the laborer that the actual user shall bear or partially bear the obligations to the laborer. In case that the actual user of the laborer does not bear the obligations stipulated by the agreement, the employer-unit shall bear the obligation to the laborer.Article 26During the valid period of the labor contract, the labor contract may be suspended under any one of the following situations:1. The laborer is recruited for military service or serve for other legal obligations provided by the State;2. The laborer can not perform the obligations stipulated in the labor contract for the time being, but there are the condition and possibility for him/her to continue the performance; and3. Other situations provided by laws and regulations or stipulated in the labor contract.With the disappearance of the situations on which the labor contract is suspended, the labor contract shall be continued unless laws or regulations have provided otherwise.Article 27In case that a laborer, without signing a written labor contract that should be signed, has performed the labor obligations as required by the employer-units, the labor contract relationship between the parties is established, and the laborer's labor remuneration and conditions shall be confirmed according to the following provisions:1. In case that the labor remuneration and conditions are higher than the employer-units’rules and regulations, the terms of the collective contract or the corresponding contents of legal labor standards, they shall be ascertained according to the actual performed contents; and2. In case that the labor remuneration and conditions are lower than the employer-units' rules and regulations, collective contract or legal labor standards, they shall be ascertained in favor of the laborer.Article 28In case that part of the terms in the labor contract does not satisfy the legal labor standard, the employer-unit shall bear the obligations according to the legal labor standards, and amend the part of the terms in the contract that does not satisfy the legal labor standards according to law.Chapter ⅣThe Rescission and Termination of Labor ContractArticle 29The labor contract may be rescinded by an agreement between both parties to the labor contract after unanimity is reached through consultation.Article 30In case that a laborer wants to rescind the labor contract, he/she shall inform the employer-unit in writing 30 days in advance.Article 31A laborer may inform the employer of the rescission of their labor contract at any time under any one of the following situations:1. During the trial period;2. The employer-unit forces the laborer to work by means of violence, threat or unlawful restraint of personal freedom; and3. The employer-unit does not pay the labor remuneration or provide labor conditions according to the terms stipulated in the labor contract.Article 32The employer-unit may rescind a labor contract under any one of the following situations, however, the employer-unit shall inform, in writing, the laborer in person 30 days in advance:1. Because of illness or non-industrial injury, and after the recovery period, the laborer can neither do the original work, nor a newly assigned work offered by the employer-unit;2. The laborer is not competent to the job, and after training or re-arranging of job post, he/she is still not competent to the new one; and3. The objective situations on which the labor contract is signed have changed significantly, and thus makes it impossible to perform the contract, and the parties to the labor contract cannot reach unanimity through consultation on the alteration of the labor contract.In case that the employer-unit does not notify the laborer of the rescission of the contract 30 days in advance according to the provisions, the employer-unit shall perform the obligations stipulated in the labor contract to the laborer within 30 days upon the date of notification.Article 33Under any one of the following situations on the side of the laborer, the employer-unit may rescind the labor contract at any time:1. Being proved do not comply with the employment requirement during the trial period;2. Seriously violating the labor discipline or the employer-units’rules and regulations;3. Seriously neglects his/her duty, practices favoritism and irregularities, and causes great loss to the employer-unit;4. Being prosecuted for criminal liability; and5. Other situations provided by laws and regulations.Article 34Under any one of the following situations on the side of the laborer, the employer-unit can notrescind the labor contract in accordance with the stipulations of Article 32 and Article 35 of these Regulations:1. Suffering of occupational disease, or industrial injury and being proved to lose or partially lose labor ability;2. Suffering of illness or injury, and being in the stipulated time period of medical treatment;3. Female laborers in their pregnancy, labor and nursing periods; and4. Other situations provided by laws and regulations.Article 35In case of a necessary and lawful reduction of laborers, the employer-unit shall explain the situation to the labor union and the whole body of laborers, and listen to their opinions. The laborers reduction scheme of the employer-unit shall be determined on the basis of consultation with the labor union or the representatives from the staff and workers to take remedial measures, and report to the labor security administrative department.The employer-unit shall notify the labor union and the laborers in person of the carrying out of the laborers reduction scheme 30 days in advance.In case that the employer-unit reduces laborers in accordance with this present Article, and it need to recruit any personnel within 6 months, the employer-unit shall give priority to the reduced personnel.Article 36In case that the employer-unit rescinds the labor contract of its staff and workers unilaterally, the employer-unit shall notify the labor union of the reason. If the labor union thinks that the employer-unit violates laws, regulations and the relevant contract, and demands a reconsideration and handling, the employer-unit shall study the labor union's opinion and notify the labor union of the result.Article 37A labor contract terminates under any one of the following situations:1. At the expiration of the labor contract;2. At the occurrence of the termination conditions stipulated in the labor contract by the parties to the contract;3. At the bankruptcy, dissolution or cancellation of the employer-unit; and4. At the retirement, resignation or death of the laborer.The labor contract may be terminated in case that the parties to the labor contract actually do not perform the labor contract for 3 months.The labor contract may be terminated in case that the laborer suffers occupational disease or industrial injury, and has been proved partially lost of labor ability, while the employer-unit has paid the employment guarantee fund for the handicapped.Article 38In case that the laborer suffers occupational disease or industrial injury, and is proved tohave lost completely or almost completely the labor ability, the employer-unit shall not terminate the labor contract. However, with a unanimity reached through consultation by both parties to the labor contract, and with an employment guarantee fund for the handicapped paid by the employer-unit, the labor contract may be terminated.Article 39If at the expiration of the labor contract, or the occurrence of the termination conditions stipulated in the labor contract by the parties to the labor contract, the laborer who is under any one of the following situations and in the meanwhile he/she is not subject to the provisions of Item 2, Item 3, and Item4 of Article 33 of these Regulations, the labor contract shall be postponed accordingly until the disappearance of the following situations：1. Suffering of illness or injury, and during the stipulated time period of medical treatment;2. Female staff and workers in their pregnancy, labor and nursing periods; and3. Other situations provided by laws and regulations.Article 40If without signing a labor contract that should be signed, the laborer may terminate the labor relationship at any time.In such cases, if the employer-unit initials the termination of labor relationship, the employer-unit shall notify the laborer 30 days in advance. However, under any one of the situations provided in Article 39, the labor relationship shall be postponed until the disappearance of the situation.Article 41At the rescission or termination of the labor contract, the employer-unit shall issue valid proof of the rescission or termination of the labor relationship.The laborer may directly go through the unemployment registration procedures with the valid proof.Article 42Under any one of the following situations, the employer-unit shall provide the laborer with an economic compensation according to the number of years the laborer has worked in the unit. The calculation is one month's salary income for one year:1. The employer-unit initials the rescission of the labor contract with the laborer in accordance with the provision of Article 29 of these Regulations;2. The laborer rescinds the labor contract in accordance with Item 2 and Item 3 of Article 31 of these Regulations;3. The employer-unit rescinds the labor contract in accordance with Item 2 of Clause 1 of Article 32 of these Regulations;4. The employer-unit rescinds the labor contract in accordance with Item 1 and Item 3 of Clause 1 of Article 32 of these Regulations;5. The employer-unit rescinds the labor contract in accordance with the provisions of Article35 of these Regulations; and6. The employer-unit rescinds the labor contract in accordance with Item 3 of Article 37 of these Regulations.Under any one of the situations described in Item1, Item 2 and Item 3 of this clause, the total amount of the compensation generally does not exceed the laborer's 12 months' salary (wage) income. If the parties to the labor contract have agreed on an excess, the agreement shall be respected.Article 43In case the termination conditions in the labor contract are the same as the rescission conditions stipulated in these Regulations, the employer-unit shall provide the laborer with an economic compensation in accordance with the corresponding compensation standards of these Regulations stipulated for the rescission of the labor contract.Article 44In case that the employer-unit rescinds the labor contract in accordance with Item 1 of Clause 1 of Article 32 of these Regulations, apart from the stipulated economic compensation, the employer-unit shall also provide a medical subsidy not lower than 6 months' salary (wage) income of the laborer.Article 45The salary income mentioned in Article 42 and Article 44 of these Regulations means the employee-unit's average salary (wage) of the 12 months preceding the rescission or termination of the labor contract. If the laborer’s average monthly salary (wage) income is lower than the minimum salary (wage) standard of this Municipality, it shall be calculated according to the minimum salary (wage) standard.The number of years the laborer has worked in the employer-unit mentioned in Article 42 of these Regulation in case of over 6 months but shorter than one year, shall be calculated as one year.Chapter ⅤSpecial Provisions on Part Time Labor ContractArticle 46A part time labor contract means the agreement that the laborer establishes labor relationship with the employer-unit taking the hour as the basic unit of working time.In case that a laborer establishes part time labor contract relationship with one or more than one employer-units, the working time of each day, week or month that the laborer stipulated with each employer-unit shall each be lower than 50% of the legal working time.The sum total of the working hours that a laborer works with several employer-units shall not exceed the legal maximum working hours.Article 47The conclusion of part time labor contract may take the written form, or may take other forms. As long as any party to the labor contract proposes a written form, the contract shall be concludedin writing.Article 48In case that the parties to the labor contract have not agreed on the employment period in the part time labor contract, either party may, at any time, notify the other party of the termination of the labor relationship.Article 49The parties to the part time labor contract may stipulate terms on working time, job description, labor remuneration, payment methods and keeping the employer-unit's commercial secret, etc.Article 50The labor remuneration of part time laborers shall be calculated according to the working hour.The labor remuneration includes hourly salary (wage) income and the social insurance premium, etc. provided by laws and regulations.Article 51In case that the employer-unit uses part time laborers and causes them industrial injuries or occupational diseases, the employer-unit shall bear corresponding liabilities.Article 52The minimum hourly payment standard of the part time laborers shall be published after the approval of the Municipal People's Government upon being submitted by the Municipal Labor and Social Security Bureau. The decision of the minimum hourly payment standard shall have a comprehensive consideration of the factors concerning the stability of employment and benefits of the part time laborers.The method of payment of social insurance premium for part time laborers shall be separately formulated by the Municipal People's Government.Article 53The provisions of Chapter 2, Chapter 3 and Chapter4 of these Regulations do not apply to the part time labor contract, however, with the exception of Article 8, Article 20 and Article 21.Chapter ⅥLegal LiabilityArticle 54In case that the fault of one party to the labor contract results in the invalidity or partial invalidity of the labor contract and thus causes damages to the other party, the wrongdoer shall bear compensation liability.Article 55The party to the labor contract who breaches the contract shall bear corresponding liabilities, and shall bear compensation liability in case of damages to the other party.In case that both parties to the labor contract breaches labor contract, each party bears his own corresponding liabilities.Article 56In case that an employer-unit does not sign a written labor contract stipulated by these Regulations with the laborer, it shall be enjoined by the labor security administrative department to correct within a time limit, and may be cumulatively penalized with a fine of between not less than 500 yuan and not more than 1000 yuan per laborer.Article 57In case that an employer-unit uses laborers, but do not go through the employment registration procedures in accordance with these Regulations, the labor security administrative department shall order a make-up registration. In case the employer-unit does not go through the procedure within the time limit, a fine of 500 yuan per laborer shall be imposed.Article 58In case of a labor dispute between the parties to the labor contract, it shall be handled according to the provisions on labor disputes.Article 59In case that one party or both parties to the labor contract do not accept the specific administrative acts of the labor security administrative department, it/they may apply for an administrative reconsideration or bring an administrative lawsuit according to the“Administrative Reconsideration Law of the People's Republic of China”and the“Administrativ e Litigation Law of the People's Republic of China”.Chapter ⅦSupplementary ProvisionsArticle 60In case that laws or administrative regulations have special provisions applicable to the subjects that sign the labor contract, the special provisions shall prevail.Article 61Labor contracts that have already been performed before the implementation of these Regulations and the local regulations and the rules and regulations of the Municipal People's Government issued at that time have explicit provisions on the obligation of the parties to the labor contract, the parties to the labor contract shall continue the performance of the contract after the implementation of these Regulations. If the local regulations and the rules and regulations of the Municipal People's Government have no explicit provisions, these Regulations shall apply accordingly.After these Regulations become effective, the provisions on the labor contract in the“Regulations of Shanghai Municipality on Labor and Personnel Administration in En terprises with Foreign Investment”shall not apply to the newly signed labor contracts between the enterprises with foreign investment and the laborers.Article 62These Regulations shall become effective on May 1, 2002.。