(英文版)劳动合同法(精)

1、Article 3LAW OF THE PEOPLES REPUBLIC OF CHINA ON EMPLOYMENTCONTRACTSAdopted at the 28th Session of the Standing Committee of the 10th NationalPeoples Con gress on June 29, 2007Effective from Jan uary 1,2008By Baker & MCKe nzieCHAPTER 1 GENERAL PROVISIONSArticle 1This Law has bee n formulated in

2、order to improve the employme nt con tract system, to specify therights and obligatio ns of the parties to employme nt con tracts, to protect the lawful rights and in terests ofEmployees and to build and develop harm onious and stable employme nt relati on ships.Article 2This Law gover ns the establ

3、ishme nt of employme nt relati on ships betwee n, and the con clusi on,performa nee, ame ndme nt, term in ati on and ending of employme nt con tracts by, orga ni zati ons such asen terprises, in dividual econo mic orga ni zati ons and private nonenterprise units in the PeoplesRepublic of China (“Emp

4、loyers”on the one hand andEmployees in the Peoples Republic of China on the other hand.The con clusi on, performa nee, ame ndme nt, term in ati on and ending of employme nt con tracts bystate authorities, in stitutio ns or social orga ni zati ons on the one hand and Employees with whom theyestablish

5、 employme nt relati on ships on the other hand, shall be han dled pursua nt to this Law.The con clusi on of employme nt con tracts shall comply with the prin ciples of lawfuln ess, fair ness,Article 5equality, free will, n egotiated consen sus and good faith.A lawfully con cluded employme nt con tra

6、ct is binding, and both the Employer and the Employee shallperform their respective obligati ons stipulated therei n.Article 4Employers shall establish and improve internal rules and regulati ons, so as to en sure that Employeesenjoy their labor rights and perform their labor obligations.Whe n an Em

7、ployer formulates, revises or decides on rules and regulatio ns, or material matters, thathave a direct bearing on the immediate interests of its Employees, such as those concerning compe nsation, work hours, rest, leave, work safety and hygie ne, in sura nee, ben efits, employee training, work disc

8、ipline or work quota man ageme nt, the same shall be discussed by the employee represe ntative con gress orall the employees. The employee represe ntative con gress or all the employees, as the case may be, shallput forward a proposal and comme nts, whereup on the matter shall be determ ined through

9、 con sultati onswith the Trade union or employee represe ntatives con ducted on a basis of equality.If, during the implementation of an Employers rule or regulation or decision on acrucial matter, the Trade union or an employee is of the opinion that the same is in appropriate, it or he is entitled

10、to com muni cate such opinion to the Employer, and the rule, regulation or decision shall be improvedby making amendments after consultations.Rules and regulations, and decisions on material matters, that have a direct bearing on the immediatein terests of Employees shall be made public or be com mu

11、ni cated to the Employees by the Employer.The labor administration authorities of People and above,together with the Trade union and enterprise representatives,shall establish a comprehe nsive tri-partite mecha nism for the coord in ati on of employme nt relati on ships,in order to join tly study an

12、d resolve major issues concerning employme nt relati on ships.Article 6s Gover nments at the coun ty levelA Trade union shall assist and guide Employees in the con clusi on of employme nt con tracts with theirEmployer and the performa nee thereof in accorda nee with the law, and establish a collecti

13、ve bargainingmechanism with the Employer in order to safeguard the lawful rights and in terests of Employees.CHAPTER 2 CONCLUSION OF EMPLOYMENT CONTRACTSArticle 7An Employers employme nt relati on ship with a Employee is established on the date it starts usingthe Employee. An Employer shall keep a r

14、egister of employees, for refere nee purposes.Article 8When an Employer hires a Employee, it shall truthfully inform him as to the content of the work, thework ing con diti ons, the place of work, occupati onal hazards, product ion safety con diti on s, labor compensati on and other matters which th

15、e Employee requests to be in formed about. The Employer has the rightto learn from the Employee basic in formatio n which directly relates to the employme nt con tract, and theEmployee shall truthfully provide the same.Article 9When hiring a Employee, an Employer may not retain the Employee card or

16、otherpapers, nor may it require him to provide security or collect property from him un dersome other guise.Article 10To establish an employme nt relati on ship, a writte n employme nt con tract shall be con cluded.In the eve nt that no writte n employme nt con tract was con cluded at the time of es

17、tablishme nt of anemployme nt relati on ship, a writte n employme nt con tract shall be con cluded with in one month after thedate on which the Employer starts using the Employee.Where an Employer and a Employee con clude an employme nt con tract before the Employer startsusing the Employee, the emp

18、loyme nt relati on ship shall be established on the date on which the Employerstarts using the Employee.Article 11In the eve nt that an Employer fails to con clude a writte n employme nt con tract with a Employee atthe time its starts to use him, and it is not clear what labor compensation was agree

19、d upon with theEmployee, the labor compensation of the new Employee shall be decided pursua nt to the rate specified inthe collective con tract; where there is no collective con tract or the collective con tract is sile nt on thematter, equal pay shall be give n for equal work.Article 12Employme nt

20、con tracts are divided in to fixed-term employme nt con tracts, ope n- en ded employment con tracts and employme nt con tracts to expire upon completi on of a certa in job.Article 13A“fixedterm employme nt contract”is an employme nt con tract whose ending date is agreed uponby the Employer and the E

21、mployee.An Employer and a Employee may con clude a fixed-term employme nt con tract upon reach ing a negotiated consen sus.s reside nt IDArticle 14An“opene nded employme nt con tract”is an employme nt con tract for which theEmployer and the Employee have agreed not to stipulate a definite ending dat

22、e.An Employer and a Employee may con clude an ope n-en ded employme nt con tract upon reach ing an egotiated consen sus. If a Employee proposes or agrees to renew his employme nt con tract or to conclude an employme nt con tract in any of the follow ing circumsta nces, an ope n-en ded employme nt co

23、ntract shall be con cluded, uni ess the Employee requests the con clusi on of a fixed-term employme nt contract:(1 The Employee has been working for the Employer for a consecutive period of not less tha n 10years;(2 whe n his Employer in troduces the employme nt con tract system or the state owned e

24、n terprisethat employs him re-c on cludes its employme nt con tracts as a result of restructuri ng, the Employee hasbee n work ing for the Employer for a con secutive period of not less than 10 years and is less than 10 yearsaway from his legal retirement age; or(3 prior to the ren ewal, a fixed-ter

25、m employme nt con tract was con cluded on two con secutive occasions and the Employee is not characterized by any of the circumsta nces set forth in Article 39 and items (1and (2 of Article 40 hereof.If an Employer fails to con clude a writte n employme nt con tract with a Employee within one year f

26、romthe date on which it starts using theEmployee, the Employer and the Employee shall be deemed to have con eluded an ope n-en dedemployme nt con tract.Article 15An“employme nt con tract with a term to expire upon completi on of a certa in job an employme nt contract in which the Employer and the Em

27、ployee have agreed that the completi on of a certa in job is the termof the con tract.An Employer and a Employee may, upon reach ing a n egotiated consen sus, con clude an employment con tract with a term to expire upon completi on of a certa in job.Article 16An employme nt con tract shall become ef

28、fective whe n the Employer and the Employee have reacheda n egotiated consen sus there on and each of them has sig ned or sealed the text of such con tract.The Employer and the Employee shall each hold one copy of the employme nt con tract.Article 17An employme nt con tract shall specify the followi

29、 ng matters:(1 The n ame, domicile and legal represe ntative or main pers on in charge of the Employer;(2 The n ame, domicile and nu mber of the reside nt ID card or other valid ide ntity docume nt of theEmployee;(3 The term of the employme nt con tract;(4 The job des cripti on and the place of work

30、;(5 Worki ng hours, rest and leave;(6 Labor compe nsati on;(7 Social in sura nee;(8 Labor protect ion, work ing con diti ons and protecti on aga inst occupati onal hazards; and(9 Other matters which laws and statutes require to be included in employment con tracts.In addition to the requisite terms

31、mentioned above, an Employer and a Employee may agree tostipulate other matters in the employme nt con tract, such as probati on period, training, con fide ntiality,suppleme ntary in sura nce and ben efits, etc.Article 18If a dispute arises due to the fact that the rate or sta ndards for labor compe

32、 nsati on or worki ng con ditions, etc. are not explicitly specified in the employme nt con tract, the Employer and the Employee may renegotiate. If the n egotiatio ns are un successful, the provisi ons of the collective con tract shall apply. If thereis no collective con tract or the collective con

33、 tract is sile nt on the issue of labor compe nsati on, equal payshall be give n for equal work; if there is no collective con tract or the collective con tract is sile nt on theissue of work ing con diti ons, the releva nt regulatio ns of the state shall apply.Article 19If an employme nt con tract

34、has a term of not less tha n three mon ths but less tha n one year, theprobati on period may not exceed one mon th; if an employme nt con tract has a term of more than one yearand less than three years, the probation period may not exceed two mon ths; and if an employme nt contract has a term of not

35、 less tha n three years or is ope n-en ded, the probati on period may not exceed sixmon ths.An Employer may stipulate only one probati on period with any give n Employee.No probati on period may be specified in an employme nt con tract with a term to expire upon completion of a certa in job or an em

36、ployme nt con tract with a term of less than three mon ths.The probati on period shall be in cluded in the term of the employme nt con tract. If an employme ntcon tract provides for a probati on period only, the n there is no probati on period and the term concernedshall be the term of the employme

37、nt con tract.Article 20The wages of a Employee on probation may not be less than the lowest wage level for the same jobwith the Employer or less tha n 80 perce nt of the wage agreed upon in the employme nt con tract, and mayn ot be less tha n the minimum wage rate in the place where the Employer is

38、located.Article 21An Employer may not term in ate an employme nt con tract duri ng the probati on period uni ess theEmployee is characterized by any of the circumsta nces set forth in Article 39 and items (1 and (2 of Article40 hereof. If an Employer term in ates an employme nt con tract duri ng the

39、 probatio n period, it shall explain the reas ons to the Employee.Article 22If an Employer provides special funding for a Employees training and gives him professi onal tech nical trainin g, it may con clude an agreeme nt specify ing a term of service with such Employee.If the Employee breaches the

40、agreeme nt on the term of service, he shall pay liquidated damages tothe Employer as agreed. The measure of the liquidated damages may not exceed the training expensespaid by the Employer. The liquidated damages that the Employer requires the Employee to pay may notexceed the portion of the training

41、 expe nses allocable to the un performed porti on of the term of service.The reach ing of agreeme nt on a term of service betwee n the Employer and theEmployee does not affect the raising of the Employees labor compensation during theterm of service accordi ng to the no rmal wage adjustme nt mecha n

42、i sm.Article 23An Employer and a Employee may in clude in their employme nt con tract provisi onson con fide ntiality matters relati ng to mai ntai ning the con fide ntiality of the trade secrets of the Employerand to in tellectual property.If a Employee has a con fide ntiality obligati on, the Empl

43、oyer may agree with theEmployee on competiti on restrict ion provisi ons in the employme nt con tract orcon fide ntiality agreeme nt, and stipulate that the Employer shall pay finan cialcompensation to the Employee on a monthly basis during the term of the competition restrictio n after theterm in a

44、ti on or ending of the employme nt con tract. If the Employee breaches the competition restrictionprovisions, he shall pay liquidated damages to the Employer as stipulated.Article 24The pers onnel subject to competitio n restrict ions shall be limited to the Employersenior man ageme nt, senior tech

45、nicians and other pers onnel with a con fide ntiality obligati on. The scope,territory and term of the competiti on restrict ions shall be agreed upon by the Employer and the Employee,and such agreeme nt shall not violate laws and regulati ons.The term, coun ted from the term in ati on or ending of

46、the employme nt con tract, for which a pers onas men ti oned in the preced ing paragraph is subject to competiti on restrictio ns in terms of his worki ng fora compet ing Employer that produces the same type of products or is en gaged in the same type of bus iness as his curre nt Employer, or in ter

47、ms of his establish ing his own bus in ess to produce the same type ofproducts or en gage in the same type of bus in ess, shall not exceed two years.Article 25With the excepti on of the circumsta nces specified in Articles 22 and 23 hereof, an Employer may notstipulate with a Employee provisions on

48、the bearing of liquidated damages by the Employee.Article 26An employme nt con tract shall be inv alid or partially inv alid if:(1 A party uses such means as decepti on or coerci on, or takes adva ntage of the other partysdifficulties, to cause the other party to con cludeemployme nt con tract, or t

49、o 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 Man datory provisi ons of laws or admi nistrative statutes are violated.If the in validity or partial in validity of the employme nt con tract

50、 is disputed, it shallbe con firmed by a labor dispute arbitrati on in stituti on or a Peoples Court.Article 27If certa in provisi ons of an employme nt con tract are inv alid and such inv alidity does not affect thevalidity of the remaining provisions, the remaining provisions shall remain valid.Ar

51、ticle 28If an employme nt con tract is con firmed as inv alid and the Employee has already performed labor,the Employer shall pay the Employee labor compensation. The amount of labor compe nsati on shall bedeterm ined with refere nee to the labor compe nsati on of Employees in the same or asimilar p

52、osition with the Employer.CHAPTER 3 PERFORMANCE AND AMENDMENT OF EMPLOYMENT CONTRACTSArticle 29The Employer and the Employee shall each fully perform its/his obligations in accorda nee with theemployme nt con tract.Article 30Employers shall pay their Employees labor compensation on time and in full

53、in accorda nee with theemployme nt con tracts and state regulatio ns.If an Employer falls into arrears with the payment of labor compensation or fails to make payme nt infull, the Employee may, in accorda nee with the law, apply to the local People sCourt for an order to pay; and the Peoples Court s

54、hEdeiissue such oaccorda nee with the law.Article 31Employers shall strictly impleme nt the work quota sta ndards and may n ot compel or in a disguisedmanner compel Employees to work overtime. If an Employer arran ges for a Employee to work overtime, itshall pay him overtime pay in accordanee with t

55、he releva nt state regulati ons.Article 32Employees shall not be held in breach of their employme nt con tracts if they refuse to perform dangerous operati ons that are in structed in violatio n of regulati ons or peremptorily ordered by man ageme ntstaff of the Employer.Employees have the right to

56、criticize, report to the authorities or lodge accusati ons aga inst theirEmployers in respect of work ing con diti ons that endan ger their lives or health.Article 33Chan ges such a cha nge in the n ame, legal represe ntative or main pers on in charge of, or an (theinvestor(s in, an Employer shall n

57、ot affect the performance of its employment con tracts.Article 34If an Employer is merged or divided, etc., its exist ing employme nt con tracts shall rema in valid andcon ti nue to be performed by the Employer(s which succeeded to its rights and obligatio nsArticle 35An Employer and a Employee may

58、ame nd the provisi ons of their employme nt con tract if they soagree after con sultati ons. Ame ndme nts to an employme nt con tract shall be made in writi ng.The Employer and the Employee shall each hold one copy of the ame nded employme nt con tract.CHAPTER 4 TERMINATION AND ENDING OF EMPLOYMENT

59、CONTRACTSArticle 36An Employer and a Employee may termi nate their employme nt con tract if they so agree after consultati ons.Article 37A Employee may term in ate his employme nt con tract upon 30 daysprior writte nnotice to his Employer. During his probation period, a Employee may terminate his em

60、ployme nt con tractby givi ng his Employer three daysprior no tice.Article 38A Employee may termi nate his employme nt con tract if his Employer:(1 Fails to provide the labor protection or working conditions specified in the employme nt con tract;(2 Fails to pay labor compensation in full and on time;(3