Labor Contract Law of the People's Republic of China (Amended in 2012)
Labor Contract Law of the People's Republic of China (Amended in 2012)
Labor Contract Law of the People's Republic of China (Amended in 2012)
Order of the President No. 73
December 28, 2012
(Adopted at the 28th Session of the Standing Committee of the Tenth National People's Congress of the People's Republic of China on June 29, 2007, and amended under the Decision to Amend the Labor Contract Law of the People's Republic of China adopted at the 30th Session of the Standing Committee of the 11th National People's Congress of the People's Republic of China on December 28, 2012)
Chapter I General Provisions
Article 1 This Law is enacted to improve the labor contract system, define the rights and obligations of the parties to a labor contract, protect the legitimate rights and interests of workers, and build and develop harmonious and stable employment relationships.
Article 2 This Law applies to the establishment of labor relationships between, the conclusion, performance, amendment, cancellation or termination of labor contracts by workers and organizations such as enterprises, individual economic organizations and private non-enterprise units in the People's Republic of China ("Employers").
The conclusion, performance, amendment, cancellation or termination of labor contracts between state authorities, institutions or social organizations and workers with whom they establish employment relationships, shall be subject to this Law.
(Relevant articles: Articles 1)
Article 3 The conclusion of a labor contract shall be based on the principles of lawfulness, fairness, equality, voluntariness, negotiated consensus and good faith.
A lawfully concluded labor contract shall have binding force, both the Employer and the employee shall perform their respective obligations stipulated therein.
(Relevant articles: Articles 4)
Article 4 Employers shall formulate and improve labor rules and regulations in accordance with the law, so as to ensure that employees enjoy their labor rights and perform their labor obligations.
The formulations, amendments and decisions made by Employers with respect to rules on labor compensation, working hours, leave and rest, occupational safety and hygiene, insurance and welfare, training, work discipline or work quota management, etc., which have a direct impact on employees' immediate rights and interests, or other material matters, shall be presented to the employee representative congress or all the employees for discussion, and the proposal and advice thereof shall be determined after consultation with the labor union or employee representative on the basis of equality.
If, during the implementation of a rule or regulation or decision on a material matter, the labor union or any of the employees deems it inappropriate, they shall be entitled to raise the issue with the Employer and have it amended after consultation.
The Employer shall make rules, regulations and decisions on material matters that have a direct impact on employees' immediate interests and rights, public or communicate the same to the employees.
(Relevant articles: PG hr management 1 Articles 19 Column 1 Checklists 1 Practical materials 1 Precedents 2)
Article 5 The labor administration authorities of the governments at the county level or above shall, together with labor unions and enterprise representatives, establish a comprehensive tri-partite mechanism for the co-ordination of employment relationships, in order to jointly study and resolve material issues relating to employment relationships.
Article 6 The labor union shall assist and guide workers in the conclusion and performance of labor contracts with their Employer, and establish a collective consultation mechanism with the Employer in order to protect the lawful rights and interests of workers.
Chapter II Conclusion of Labor Contracts
Article 7 The employment relationship between an Employer and an employee shall commence on the date when the employee commences work. The Employer shall keep a register of employees, for future reference.
Article 8 The Employer shall truthfully advise the employee of the scope of work, the working conditions, the place of work, occupational hazards, production safety conditions, labor compensation and other matters requested by the employee; the Employer shall be entitled to know the basic information of the employee that directly relates to the labor contract, and the employee shall truthfully provide the same.
(Relevant articles: Practical materials 1 Legislation 2 Articles 5 Column 1)
Article 9 When hiring an employee, the Employer shall not retain the employee's resident ID card or other documentation, nor demand the employee to provide security or collect property from him/her under some other guise.
(Relevant articles: Articles 1)
Article 10 A written labor contract shall be concluded when establishing an employment relationship.
Where an employment relationship has been established without the conclusion of a written labor contract, the written labor contract shall be concluded within one month from the date when the employee commences work.
Where an Employer and an employee conclude a labor contract before the employee commences work, the employment relationship shall be established on the date when the employee commences work.
(Relevant articles: Articles 5 Practical materials 1)
Article 11 Where an Employer fails to conclude a written labor contract with an employee before the employee commences work, and the labor compensation agreed upon with the employee is unclear, the labor compensation for the newly recruited employee shall be paid in accordance with the standards stipulated in the collective contract; where there is no collective contract or the collective contract is silent on the matter, the principle of equal pay for equal work shall apply.
Article 12 Labor contracts are divided into fixed-term labor contracts, open-ended labor contracts and labor contracts that terminate upon the completion of a certain task.
(Relevant articles: PG hr management 1 Articles 1)
Article 13 A "fixed-term labor contract" refers to a labor contract where the termination date has been agreed upon by the Employer and the employee.
A fixed-term labor contract may be concluded between an Employer and an employee upon consultation.
(Relevant articles: PG hr management 1)
Article 14 An "open-ended labor contract" refers to a labor contract where the Employer and the employee have agreed not to stipulate a definite termination date.
An open-ended labor contract may be concluded between an Employer and an employee upon consultation. If an employee proposes or agrees to renew and conclude a labor contract in any of the following circumstances, an open-ended labor contract shall be concluded, unless the employee requests the conclusion of a fixed-term labor contract instead:
1. The employee has been working for the Employer for ten consecutive years;
2. When the Employer first introduces the labor contract system or the state-owned enterprise that employs him re-concludes its labor contracts as of restructuring, the employee has been working for the Employer for ten consecutive years and is less than ten years away from his legal retirement age; or
3. Where a labor contract was concluded as a fixed-term labor contract on two consecutive occasions and the employee, in the absence of any of the circumstances stipulated in Article 39 and Items 1 and 2 of Article 40 hereof, renews such contract.
If an Employer fails to conclude a written labor contract with an employee within one year from the date the employee commences work, they shall be deemed to have entered into an open-ended labor contract.
(Relevant articles: Practical materials 2 Articles 7 Legislation 2 Precedents 1 PG hr management 1)
Article 15 A "labor contract that terminates upon the completion of a certain task" refers to a labor contract where the Employer and the employee have agreed that the contractual term is based on the completion of a specific task.
An Employer and an employee may, upon consultation, conclude a labor contract with a term that is based on the completion of a certain task.
(Relevant articles: PG hr management 1)
Article 16 A labor contract shall become effective after the Employer and the employee have both signed or sealed such contract upon reaching a negotiated consensus.
The Employer and the employee shall each keep one copy of the labor contract.
(Relevant articles: Articles 2)
Article 17 A labor contract shall include the following items:
1. name, domicile and legal representative or main person in-charge of the Employer;
2. name, residential address and number of the resident ID card or other valid identity document number of the worker;
3. term of the labor contract;
4. scope of work and place of work;
5. working hours, rest and leave;
6. labor compensation;
7. social insurance;
8. labor protection, working conditions and protection against occupational hazards; and
9. other issues required by laws and regulations to be included in the labor contract.
Apart from the mandatory terms mentioned above, an Employer and an employee may agree to include other matters in the labor contract such as probation period, training, confidentiality, supplementary insurance and welfare, etc.
(Relevant articles: Legislation 1 Articles 8 PG hr management 1 Practical materials 3 Column 1)
Article 18 Should a dispute arise due to the ambiguous nature of the standards for labor compensation or working conditions or other matters, the Employer and employee may renegotiate; if such negotiation fails, the provisions of the collective contract shall apply. If there is no collective contract or if the collective contract is silent on the issue of labor compensation, the principle of equal pay for equal work shall apply; if there is no collective contract or the collective contract is silent on the standards for working conditions or other matters, the relevant regulations of the State shall apply.
(Relevant articles: Articles 1 Policy of holiday&leave, wage&welfare, compensation 2 Practical materials 2)
Article 19 If a labor contract has a term of more than three months but less than one year, the probation period may not exceed one month; if a labor contract has a term of more than one year but less than three years, the probation period may not exceed two months; for a fixed-term labor contract with a term of more than three years and an open-ended labor contract, the probation period may not exceed six months.
The same Employer may only stipulate one probation period with any given employee.
The probation period shall not apply to labor contracts with a term of less than three months or to labor contracts that terminate upon the completion of a certain task.
The probation period shall form part of the term of the labor contract. If a labor contract merely contains a probation period, such probation period shall be rendered void and be deemed as the term of the labor contract.
(Relevant articles: Precedents 2 Articles 1 Legislation 1 PG hr management 1)
Article 20 The wages paid to employees during their probation period shall not be less than the minimum wage level for the same position with the Employer or less than 80% of the wage agreed upon in the labor contract, and shall not be less than the minimum wage of the place where the Employer is located.
(Relevant articles: Precedents 2)
Article 21 An Employer shall not cancel a labor contract during the probation period unless the employee falls into any of the circumstances stipulated in Article 39 and Items 1 and 2 of Article 40 hereof. If an Employer cancels a labor contract during the probation period, it shall explain the reasons to the employee.
Article 22 If an Employer is paying for a worker's special training expenses and providing him with professional technical training, it may enter into an agreement specifying a term of service with such employee.
If the employee breaches the agreed term of service, he shall pay liquidated damages to the Employer in accordance with the terms of the agreement.
......
Order of the President No. 73
December 28, 2012
(Adopted at the 28th Session of the Standing Committee of the Tenth National People's Congress of the People's Republic of China on June 29, 2007, and amended under the Decision to Amend the Labor Contract Law of the People's Republic of China adopted at the 30th Session of the Standing Committee of the 11th National People's Congress of the People's Republic of China on December 28, 2012)
Chapter I General Provisions
Article 1 This Law is enacted to improve the labor contract system, define the rights and obligations of the parties to a labor contract, protect the legitimate rights and interests of workers, and build and develop harmonious and stable employment relationships.
Article 2 This Law applies to the establishment of labor relationships between, the conclusion, performance, amendment, cancellation or termination of labor contracts by workers and organizations such as enterprises, individual economic organizations and private non-enterprise units in the People's Republic of China ("Employers").
The conclusion, performance, amendment, cancellation or termination of labor contracts between state authorities, institutions or social organizations and workers with whom they establish employment relationships, shall be subject to this Law.
(Relevant articles: Articles 1)
Article 3 The conclusion of a labor contract shall be based on the principles of lawfulness, fairness, equality, voluntariness, negotiated consensus and good faith.
A lawfully concluded labor contract shall have binding force, both the Employer and the employee shall perform their respective obligations stipulated therein.
(Relevant articles: Articles 4)
Article 4 Employers shall formulate and improve labor rules and regulations in accordance with the law, so as to ensure that employees enjoy their labor rights and perform their labor obligations.
The formulations, amendments and decisions made by Employers with respect to rules on labor compensation, working hours, leave and rest, occupational safety and hygiene, insurance and welfare, training, work discipline or work quota management, etc., which have a direct impact on employees' immediate rights and interests, or other material matters, shall be presented to the employee representative congress or all the employees for discussion, and the proposal and advice thereof shall be determined after consultation with the labor union or employee representative on the basis of equality.
If, during the implementation of a rule or regulation or decision on a material matter, the labor union or any of the employees deems it inappropriate, they shall be entitled to raise the issue with the Employer and have it amended after consultation.
The Employer shall make rules, regulations and decisions on material matters that have a direct impact on employees' immediate interests and rights, public or communicate the same to the employees.
(Relevant articles: PG hr management 1 Articles 19 Column 1 Checklists 1 Practical materials 1 Precedents 2)
Article 5 The labor administration authorities of the governments at the county level or above shall, together with labor unions and enterprise representatives, establish a comprehensive tri-partite mechanism for the co-ordination of employment relationships, in order to jointly study and resolve material issues relating to employment relationships.
Article 6 The labor union shall assist and guide workers in the conclusion and performance of labor contracts with their Employer, and establish a collective consultation mechanism with the Employer in order to protect the lawful rights and interests of workers.
Chapter II Conclusion of Labor Contracts
Article 7 The employment relationship between an Employer and an employee shall commence on the date when the employee commences work. The Employer shall keep a register of employees, for future reference.
Article 8 The Employer shall truthfully advise the employee of the scope of work, the working conditions, the place of work, occupational hazards, production safety conditions, labor compensation and other matters requested by the employee; the Employer shall be entitled to know the basic information of the employee that directly relates to the labor contract, and the employee shall truthfully provide the same.
(Relevant articles: Practical materials 1 Legislation 2 Articles 5 Column 1)
Article 9 When hiring an employee, the Employer shall not retain the employee's resident ID card or other documentation, nor demand the employee to provide security or collect property from him/her under some other guise.
(Relevant articles: Articles 1)
Article 10 A written labor contract shall be concluded when establishing an employment relationship.
Where an employment relationship has been established without the conclusion of a written labor contract, the written labor contract shall be concluded within one month from the date when the employee commences work.
Where an Employer and an employee conclude a labor contract before the employee commences work, the employment relationship shall be established on the date when the employee commences work.
(Relevant articles: Articles 5 Practical materials 1)
Article 11 Where an Employer fails to conclude a written labor contract with an employee before the employee commences work, and the labor compensation agreed upon with the employee is unclear, the labor compensation for the newly recruited employee shall be paid in accordance with the standards stipulated in the collective contract; where there is no collective contract or the collective contract is silent on the matter, the principle of equal pay for equal work shall apply.
Article 12 Labor contracts are divided into fixed-term labor contracts, open-ended labor contracts and labor contracts that terminate upon the completion of a certain task.
(Relevant articles: PG hr management 1 Articles 1)
Article 13 A "fixed-term labor contract" refers to a labor contract where the termination date has been agreed upon by the Employer and the employee.
A fixed-term labor contract may be concluded between an Employer and an employee upon consultation.
(Relevant articles: PG hr management 1)
Article 14 An "open-ended labor contract" refers to a labor contract where the Employer and the employee have agreed not to stipulate a definite termination date.
An open-ended labor contract may be concluded between an Employer and an employee upon consultation. If an employee proposes or agrees to renew and conclude a labor contract in any of the following circumstances, an open-ended labor contract shall be concluded, unless the employee requests the conclusion of a fixed-term labor contract instead:
1. The employee has been working for the Employer for ten consecutive years;
2. When the Employer first introduces the labor contract system or the state-owned enterprise that employs him re-concludes its labor contracts as of restructuring, the employee has been working for the Employer for ten consecutive years and is less than ten years away from his legal retirement age; or
3. Where a labor contract was concluded as a fixed-term labor contract on two consecutive occasions and the employee, in the absence of any of the circumstances stipulated in Article 39 and Items 1 and 2 of Article 40 hereof, renews such contract.
If an Employer fails to conclude a written labor contract with an employee within one year from the date the employee commences work, they shall be deemed to have entered into an open-ended labor contract.
(Relevant articles: Practical materials 2 Articles 7 Legislation 2 Precedents 1 PG hr management 1)
Article 15 A "labor contract that terminates upon the completion of a certain task" refers to a labor contract where the Employer and the employee have agreed that the contractual term is based on the completion of a specific task.
An Employer and an employee may, upon consultation, conclude a labor contract with a term that is based on the completion of a certain task.
(Relevant articles: PG hr management 1)
Article 16 A labor contract shall become effective after the Employer and the employee have both signed or sealed such contract upon reaching a negotiated consensus.
The Employer and the employee shall each keep one copy of the labor contract.
(Relevant articles: Articles 2)
Article 17 A labor contract shall include the following items:
1. name, domicile and legal representative or main person in-charge of the Employer;
2. name, residential address and number of the resident ID card or other valid identity document number of the worker;
3. term of the labor contract;
4. scope of work and place of work;
5. working hours, rest and leave;
6. labor compensation;
7. social insurance;
8. labor protection, working conditions and protection against occupational hazards; and
9. other issues required by laws and regulations to be included in the labor contract.
Apart from the mandatory terms mentioned above, an Employer and an employee may agree to include other matters in the labor contract such as probation period, training, confidentiality, supplementary insurance and welfare, etc.
(Relevant articles: Legislation 1 Articles 8 PG hr management 1 Practical materials 3 Column 1)
Article 18 Should a dispute arise due to the ambiguous nature of the standards for labor compensation or working conditions or other matters, the Employer and employee may renegotiate; if such negotiation fails, the provisions of the collective contract shall apply. If there is no collective contract or if the collective contract is silent on the issue of labor compensation, the principle of equal pay for equal work shall apply; if there is no collective contract or the collective contract is silent on the standards for working conditions or other matters, the relevant regulations of the State shall apply.
(Relevant articles: Articles 1 Policy of holiday&leave, wage&welfare, compensation 2 Practical materials 2)
Article 19 If a labor contract has a term of more than three months but less than one year, the probation period may not exceed one month; if a labor contract has a term of more than one year but less than three years, the probation period may not exceed two months; for a fixed-term labor contract with a term of more than three years and an open-ended labor contract, the probation period may not exceed six months.
The same Employer may only stipulate one probation period with any given employee.
The probation period shall not apply to labor contracts with a term of less than three months or to labor contracts that terminate upon the completion of a certain task.
The probation period shall form part of the term of the labor contract. If a labor contract merely contains a probation period, such probation period shall be rendered void and be deemed as the term of the labor contract.
(Relevant articles: Precedents 2 Articles 1 Legislation 1 PG hr management 1)
Article 20 The wages paid to employees during their probation period shall not be less than the minimum wage level for the same position with the Employer or less than 80% of the wage agreed upon in the labor contract, and shall not be less than the minimum wage of the place where the Employer is located.
(Relevant articles: Precedents 2)
Article 21 An Employer shall not cancel a labor contract during the probation period unless the employee falls into any of the circumstances stipulated in Article 39 and Items 1 and 2 of Article 40 hereof. If an Employer cancels a labor contract during the probation period, it shall explain the reasons to the employee.
Article 22 If an Employer is paying for a worker's special training expenses and providing him with professional technical training, it may enter into an agreement specifying a term of service with such employee.
If the employee breaches the agreed term of service, he shall pay liquidated damages to the Employer in accordance with the terms of the agreement.
......