劳动合同法英文版12895.doc

LAW OF THE PEOPLE'S REPUBLIC OF INA ON EMPLOYMENT CONTRACTSAdopted at the 28th Session of the Standing mittee of the 10th National People's Congress on June 29, 2007Effective from January 1, 2021By Baker MCKenzieAPTER 1 GENERAL PROVISIONS Article 1This Law has been formulated in order to improve the employment contract system, to specify the rights and obligations of the parties to employment contracts, to protect the lawful rights and interests of Employees and to build and develop harmonious and stable employment relationships. Article 2This Law governs the establishment of employment relationships between, and the conclusion, performance, amendment, termination and ending of employment contracts by, organizations su as enterprises, individual economic organizations and private non-enterprise units in the Peoples Republic of ina (“Employers) on the one hand and Employees in the Peoples Republic of ina on the other hand. The conclusion, performance, amendment, termination and ending of employment contracts by state authorities, institutions or social organizations on the one hand and Employees with whom they establish employment relationships on the other hand, shall be handled pursuant to this Law.Article 3The conclusion of employment contracts shall ply with the principles of lawfulness, fairness, equality, free will, negotiated consensus and good faith. A lawfully concluded employment contract is binding, and both the Employer and the Employee shall perform their respective obligations stipulated therein. Article 4Employers shall establish and improve internal rules and regulations, so as to ensure that Employees enjoy their labor rights and perform their labor obligations. When an Employer formulates, revises or decides on rules and regulations, or material matters, that have a direct bearing on the immediate interests of its Employees, su as those concerning pensation, work hours, rest, leave, work safety and hygiene, insurance, benefits, employee training, work discipline or work quota management, the same shall be discussed by the employee representative congress or all the employees. The employee representative congress or all the employees, as the case may be, shall put forward a proposal and ments, whereon the matter shall be determined through consultations with the Trade union or employee representatives conducted on a basis of equality. If, during the implementation of an Employers rule or regulation or decision on a crucial matter, the Trade union or an employee is of the opinion that the same is inappropriate, it or he is entitled to municate su opinion to the Employer, and the rule, regulation or decision shall be improved by making amendments after consultations. Rules and regulations, and decisions on material matters, that have a direct bearing on the immediate interests of Employees shall be made public or be municated to the Employees by the Employer. Article 5The labor administration authorities of Peoples Governments at the county level and above, together with the Trade union and enterprise representatives, shall establish a prehensive tri-partite meani for the coordination of employment relationships, in order to jointly study and resolve major issues concerning employment relationships. Article 6A Trade union shall assist and guide Employees in the conclusion of employment contracts with their Employer and the performance thereof in accordance with the law, and establish a collective bargaining meani with the Employer in order to safeguard the lawful rights and interests of Employees. APTER 2 CONCLUSION OF EMPLOYMENT CONTRACTSArticle 7An Employers employment relationship with a Employee is established on the date it starts using the Employee. An Employer shall keep a register of employees, for reference purposes. Article 8When an Employer hires a Employee, it shall truthfully inform him as to the content of the work, the working conditions, the place of work, occational hazards, production safety conditions, labor pensation and other matters whi the Employee requests to be informed about. The Employer has the right to learn from the Employee basic information whi directly relates to the employment contract, and the Employee shall truthfully provide the same. Article 9When hiring a Employee, an Employer may not retain the Employees resident ID card or other papers, nor may it require him to provide security or collect property from him under some other guise. Article 10To establish an employment relationship, a written employment contract shall be concluded. In the event that no written employment contract was concluded at the time of establishment of an employment relationship, a written employment contract shall be concluded within one month after the date on whi the Employer starts using the Employee.Where an Employer and a Employee conclude an employment contract before the Employer starts using the Employee, the employment relationship shall be established on the date on whi the Employer starts using the Employee. Article 11In the event that an Employer fails to conclude a written employment contract with a Employee at the time its starts to use him, and it is not clear what labor pensation was agreed on with the Employee, the labor pensation of the new Employee shall be decided pursuant to the rate specified in the collective contract; where there is no collective contract or the collective contract is silent on the matter, equal pay shall be given for equal work. Article 12Employment contracts are divided into fixed-term employment contracts, open-ended employment contracts and employment contracts to expire on pletion of a certain job. Article 13A “fixed-term employment contract is an employment contract whose ending date is agreed on by the Employer and the Employee. An Employer and a Employee may conclude a fixed-term employment contract on reaing a negotiated consensus. Article 14An “open-ended employment contract is an employment contract for whi the Employer and the Employee have agreed not to stipulate a definite ending date. An Employer and a Employee may conclude an open-ended employment contract on reaing a negotiated consensus. If a Employee proposes or agrees to renew his employment contract or to conclude an employment contract in any of the following circumstances, an open-ended employment contract shall be concluded, unless the Employee requests the conclusion of a fixed-term employment contract: (1) The Employee has been working for the Employer for a consecutive period of not less than 10 years; (2) when his Employer introduces the employment contract system or the state owned enterprise that employs him re-concludes its employment contracts as a result of restructuring, the Employee has been working for the Employer for a consecutive period of not less than 10 years and is less than 10 years away from his legal retirement age; or (3) prior to the renewal, a fixed-term employment contract was concluded on two consecutive occasions and the Employee is not aracterized by any of the circumstances set forth in Article 39 and items (1) and (2) of Article 40 hereof. If an Employer fails to conclude a written employment contract with a Employee within one year from the date on whi it starts using the Employee, the Employer and the Employee shall be deemed to have concluded an open-ended employment contract. Article 15An “employment contract with a term to expire on pletion of a certain job is an employment contract in whi the Employer and the Employee have agreed that the pletion of a certain job is the term of the contract. An Employer and a Employee may, on reaing a negotiated consensus, conclude an employment contract with a term to expire on pletion of a certain job.Article 16An employment contract shall bee effective when the Employer and the Employee have reaed a negotiated consensus thereon and ea of them has signed or sealed the text of su contract. The Employer and the Employee shall ea hold one copy of the employment contract. Article 17An employment contract shall specify the following matters: (1) The name, domicile and legal representative or main person in arge of the Employer; (2) The name, domicile and number of the resident ID card or other valid identity document of the Employee; (3) The term of the employment contract; (4) The job des cription and the place of work; (5) Working hours, rest and leave; (6) Labor pensation; (7) Social insurance; (8) Labor protection, working conditions and protection against occational hazards; and (9) Other matters whi laws and statutes require to be included in employment contracts. In addition to the requisite terms mentioned above, an Employer and a Employee may agree to stipulate other matters in the employment contract, su as probation period, training, confidentiality, splementary insurance and benefits, etc. Article 18If a dispute arises due to the fact that the rate or standards for labor pensation or working conditions, etc. are not explicitly specified in the employment contract, the Employer and the Employee may renegotiate. If the negotiations are unsuccessful, the provisions of the collective contract shall apply. If there is no collective contract or the collective contract is silent on the issue of labor pensation, equal pay shall be given for equal work; if there is no collective contract or the collective contract is silent on the issue of working conditions, the relevant regulations of the state shall apply. Article 19If an employment contract has a term of not less than three months but less than one year, the probation period may not exceed one month; if an employment contract has a term of more than one year and less than three years, the probation period may not exceed two months; and if an employment contract has a term of not less than three years or is open-ended, the probation period may not exceed six months. An Employer may stipulate only one probation period with any given Employee.No probation period may be specified in an employment contract with a term to expire on pletion of a certain job or an employment contract with a term of less than three months. The probation period shall be included in the term of the employment contract. If an employment contract provides for a probation period only, then there is no probation period and the term concerned shall be the term of the employment contract. Article 20The wages of a Employee on probation may not be less than the lowest wage level for the same job with the Employer or less than 80 percent of the wage agreed on in the employment contract, and may not be less than the minimum wage rate in the place where the Employer is located. Article 21An Employer may not terminate an employment contract during the probation period unless the Employee is aracterized by any of the circumstances set forth in Article 39 and items (1) and (2) of Article 40 hereof. If an Employer terminates an employment contract during the probation period, it shall explain the reasons to the Employee. Article 22If an Employer provides special funding for a Employees training and gives him professional tenical training, it may conclude an agreement specifying a term of service with su Employee. If the Employee breaes the agreement on the term of service, he shall pay liquidated damages to the Employer as agreed. The measure of the liquidated damages may not exceed the training expenses paid by the Employer. The liquidated damages that the Employer requires the Employee to pay may not exceed the portion of the training expenses allocable to the unperformed portion of the term of service. The reaing of agreement on a term of service between the Employer and the Employee does not affect the raising of the Employees labor pensation during the term of service according to the normal wage adjustment meani. Article 23An Employer and a Employee may include in their employment contract provisions on confidentiality matters relating to maintaining the confidentiality of the trade secrets of the Employer and to intellectual property. If a Employee has a confidentiality obligation, the Employer may agree with the Employee on petition restriction provisions in the employment contract or confidentiality agreement, and stipulate that the Employer shall pay financial pensation to the Employee on a monthly basis during the term of the petition restriction after the termination or ending of the employment contract. If the Employee breaes the petition restriction provisions, he shall pay liquidated damages to the Employer as stipulated. Article 24The personnel subject to petition restrictions shall be limited to the Employers senior management, senior tenicians and other personnel with a confidentiality obligation. The scope, territory and term of the petition restrictions shall be agreed on by the Employer and the Employee, and su agreement shall not violate laws and regulations. The term, counted from the termination or ending of the employment contract, for whi a person as mentioned in the preceding paragraph is subject to petition restrictions in terms of his working for a peting Employer that produces the same type of products or is engaged in the same type of business as his current Employer, or in terms of his establishing his own business to produce the same type of products or engage in the same type of business, shall not exceed two years. Article 25With the exception of the circumstances specified in Articles 22 and 23 hereof, an Employer may not stipulate with a Employee provisions on the bearing of liquidated damages by the Employee. Article 26An employment contract shall be invalid or partially invalid if: (1) A party uses su means as deception or coercion, or takes advantage of the other partys difficulties, to cause the other party to conclude an employment contract, or to make an amendment thereto, that is contrary to that partys true intent; (2) The Employer disclaims its legal liability or denies the Employee his rights; or (3) Mandatory provisions of laws or administrative statutes are violated. If the invalidity or partial invalidity of the employment contract is disputed, it shall be confirmed by a labor dispute arbitration institution or a Peoples Court. Article 27If certain provisions of an employment contract are invalid and su invalidity does not affect the validity of the remaining provisions, the remaining provisions shall remain valid. Article 28If an employment contract is confirmed as invalid and the Employee has already performed labor, the Employer shall pay the Employee labor pensation. The amount of labor pensation shall be determined with reference to the labor pensation of Employees in the same or a similar position with the Employer.