LAW OF THE PEOPLEWord文件下载.docx

1、By Baker & MCKenzieCHAPTER 1 GENERAL PROVISIONSArticle 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 harm

2、onious 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 such as enterprises, individual economic organizations and private

3、 non-enterprise units in the Peoples Republic of China （“Employers”） on the one hand and Employees in the Peoples Republic of China on the other hand. The conclusion, performance, amendment, termination and ending of employment contracts by state authorities, institutions or social organizations on

4、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 comply with the principles of lawfulness, fairness, equality, free will, negotiated consensus and good faith. A

5、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

6、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, such as those concerning compensation, work hours, rest, leave, work safety and hygiene, insurance, benefits

7、, 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 comments, whereupon the matter shal

8、l 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,

9、it or he is entitled to communicate such 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 mad

10、e public or be communicated 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 comprehensive tri-partite mechanism for the coordination o

11、f 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 establ

12、ish a collective bargaining mechanism with the Employer in order to safeguard the lawful rights and interests of Employees. CHAPTER 2 CONCLUSION OF EMPLOYMENT CONTRACTSArticle 7An Employers employment relationship with a Employee is established on the date it starts using the Employee. An Employer s

13、hall 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, occupational hazards, production safety conditions, labor compensation and other matters whi

14、ch the Employee requests to be informed about. The Employer has the right to learn from the Employee basic information which 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 resi

15、dent 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 tim

16、e of establishment of an employment relationship, a written employment contract shall be concluded within one month after the date on which the Employer starts using the Employee.Where an Employer and a Employee conclude an employment contract before the Employer starts using the Employee, the emplo

17、yment relationship shall be established on the date on which 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 compensation was agreed upon

18、with the Employee, the labor compensation 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

19、are divided into fixed-term employment contracts, open-ended employment contracts and employment contracts to expire upon completion of a certain job. Article 13A “fixed-term employment contract” is an employment contract whose ending date is agreed upon by the Employer and the Employee. An Employer

20、 and a Employee may conclude a fixed-term employment contract upon reaching a negotiated consensus. Article 14An “open-ended employment contract” is an employment contract for which the Employer and the Employee have agreed not to stipulate a definite ending date. An Employer and a Employee may conc

21、lude an open-ended employment contract upon reaching 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 reques

22、ts 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 cont

23、racts 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

24、 and the Employee is not characterized 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 which it starts using the Employee, the Employer and

25、the Employee shall be deemed to have concluded an open-ended employment contract. Article 15An “employment contract with a term to expire upon completion of a certain job” is an employment contract in which the Employer and the Employee have agreed that the completion of a certain job is the term of

26、 the contract. An Employer and a Employee may, upon reaching a negotiated consensus, conclude an employment contract with a term to expire upon completion of a certain job. Article 16An employment contract shall become effective when the Employer and the Employee have reached a negotiated consensus

27、thereon and each of them has signed or sealed the text of such contract. The Employer and the Employee shall each 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 charge of

28、 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 compensation;（7） Social insurance;（8） Labor prot

29、ection, working conditions and protection against occupational hazards; and （9） Other matters which 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

30、contract, such as probation period, training, confidentiality, supplementary insurance and benefits, etc. Article 18If a dispute arises due to the fact that the rate or standards for labor compensation or working conditions, etc. are not explicitly specified in the employment contract, the Employer

31、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 compensation, equal pay shall be given for equal work; if there is no collectiv

32、e 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