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Regulations on the Implementation of the Labor Contract Law of the People's Republic of China
(Decree No. 535 of the State Council of the People's Republic of China)
The Regulations on the Implementation of the Labor Contract Law of the People's Republic of China, which were adopted at the 25th executive meeting of the State Council on September 3, 2008, are hereby promulgated and shall come into force as of the date of promulgation.Regulations on the Implementation of the Labor Contract Law of the People's Republic of China
Chapter I General Provisions
Article 1 These Regulations are formulated for the purpose of implementing the Labor Contract Law of the People's Republic of China (hereinafter referred to as the Labor Contract Law).
Article 2 People's governments at all levels and the relevant departments of labor administration under the people's governments at or above the county level, as well as trade unions and other organizations, shall take measures to promote the implementation of the Labor Contract Law and promote the harmony of labor relations.
Article 3 Partnerships and foundations such as law firms and law offices established according to law shall be employing units as provided for in the Labor Contract Law.
Chapter II Conclusion of Labor Contracts
Article 4 Branches of employing units established according to the Labor Contract Law, which have obtained business licenses or registration certificates according to law, may enter into labor contracts as employing units with workers; those which have not obtained business licenses or registration certificates according to law may enter into labor contracts with workers on behalf of the employing units. Article 5 If a laborer does not conclude a written labor contract with the employing unit within one month after the employing unit has given a written notice to the laborer, the employing unit shall notify the laborer in writing of the termination of the labor relationship without paying economic compensation to the laborer, but shall pay the labor remuneration for the actual working time to the laborer according to law.
Article 6 If an employing unit fails to conclude a written labor contract with the laborer within one month but less than one year after the employing unit has given a written notice to the laborer, it shall pay the laborer twice the monthly wage in accordance with the provisions of Article 82 of the Labor Contract Law and make up a written labor contract with the laborer; if the laborer does not conclude a written labor contract with the employing unit, the employing unit shall notify the laborer in writing of the termination of the labor relationship and pay economic compensation in accordance with the provisions of Article 47 of the Labor Contract Law. The starting time for the employing unit to pay the laborer twice the monthly wage as provided in the preceding paragraph shall be the next day after the expiration of one month after the employing date, and the deadline shall be the day before the making up of a written labor contract. Article 7 If the employing unit has not concluded a written labor contract with the laborer after one year has passed since the date of employment, it shall pay the laborer twice the monthly wage from the second day after one month has passed to the day before one year has passed in accordance with the provisions of Article 82 of the Labor Contract Law, and shall be deemed to have concluded an open-ended labor contract with the laborer on the day after one year has passed since the date of employment, and shall immediately supplement the written labor contract with the laborer.
Article 8 The list of employees as stipulated in Article 7 of the Labor Contract Law shall include the laborer's name, gender, citizenship number, registered address and current address, contact information, form of employment, starting time of employment, term of labor contract, etc.
Article 9 The starting time of continuous employment of ten years as stipulated in Article 14 (2) of the Labor Contract Law shall be calculated from the date of employment of the employing unit, including the working years before the implementation of the Labor Contract Law.
Article 10 If a laborer is arranged to work in a new employing unit from the original employing unit without his own reasons, the laborer's working years in the original employing unit shall be combined and calculated as the working years in the new employing unit. Where the original employing unit has paid economic compensation to the laborer, the new employing unit shall not calculate the laborer's working years in the original employing unit when calculating the working years for the payment of economic compensation when dissolution or termination of the labor contract according to law.
Article 11 Except for the circumstances where the laborer and the employing unit reach an agreement through consultation, if the laborer proposes to conclude a labor contract with unfixed term in accordance with the provisions of the second paragraph of Article 14 of the Labor Contract Law, the employing unit shall conclude a labor contract with unfixed term with the laborer.The contents of the labor contract shall be determined through consultation by both parties in accordance with the principles of legality, fairness, equality, voluntariness, reaching an agreement through consultation and good faith.The contents that fail to reach an agreement through consultation shall be implemented in accordance with the provisions of Article 18 of the Labor Contract Law.
Article 12 For the public welfare posts that are provided by local people's governments at various levels and relevant departments of local people's governments at or above the county level for the purpose of settlement of persons with difficulties in finding jobs and are provided with post subsidies and social insurance subsidies, the labor contracts shall not be subject to the provisions of the Labor Contract Law on labor contracts with unfixed term and the provisions on the payment of economic compensation.
Article 13 The employing unit and the laborer shall not agree on other conditions for the termination of labor contracts other than the circumstances for the termination of labor contracts as provided in Article 44 of the Labor Contract Law. Article 14 Where the place where a labor contract is performed is different from the place where the employing unit is registered, the matters concerning the laborer's minimum wage, labor protection, working conditions, occupational hazard protection and the monthly average wage of employees in the previous year in the region shall be governed by the relevant regulations of the place where the labor contract is performed; where the relevant regulations of the place where the employing unit is registered are higher than the relevant regulations of the place where the labor contract is performed, and the employing unit and the laborer agree to follow the relevant regulations of the place where the employing unit is registered, such agreement shall prevail.
Article 15 The wage of a laborer during the probation period shall not be lower than 80% of the lowest wage of the same post in the unit or shall not be lower than 80% of the wage agreed in the labor contract, and shall not be lower than the minimum wage of the place where the employing unit is located.
Article 16 The training expenses as provided for in Paragraph 2 of Article 22 of the Labor Contract Law shall include the certificated training expenses paid by the employing unit for the professional and technical training of the laborer, the travel expenses incurred during the training period and other direct expenses incurred for the laborer as a result of the training.
Article 17 Where the term of service agreed upon by the employing unit and the laborer in accordance with Article 22 of the Labor Contract Law has not expired, the labor contract shall be renewed until the term of service expires; if the parties agree otherwise, such agreement shall prevail.
Chapter III Dissolution and Termination of Labor Contracts Article 18 Under any of the following circumstances, a laborer may, in accordance with the conditions and procedures prescribed by the Labor Contract Law, terminate with the employing unit a labor contract with fixed term, a labor contract without fixed term or a labor contract with a term based on the completion of certain tasks:
(1) where the laborer and the employing unit reach an agreement through consultation;
(2) where the laborer notifies the employing unit in writing 30 days in advance;
(3) where the laborer notifies the employing unit 3 days in advance during the probation period;
(4) where the employing unit fails to provide labor protection or labor conditions as agreed in the labor contract;
(5) where the employing unit fails to pay labor remuneration in full and on time;
(6) where the employing unit fails to pay social insurance premiums for the laborer in accordance with the law;
(7) where the rules and regulations of the employing unit violate the provisions of laws and regulations and damage the rights and interests of the laborer;
(8) where the employing unit uses deception, coercion or takes advantage of a person's weakness to make the laborer conclude or alter the labor contract against his true intentions;
(9) where the employing unit exempts itself from legal liability and excludes the rights of the laborer in the labor contract;
(10) where the employing unit violates mandatory provisions of laws and administrative regulations;
(11) where the employing unit forces the laborer to work by means of violence, threat or illegal restriction of personal freedom; (12) The employing unit directs or forces a laborer to engage in risky operations in violation of regulations, endangering the personal safety of the laborer;
(13) Other circumstances under which laws and administrative regulations provide that a laborer may dissolve a labor contract.
Article 19 Under any of the following circumstances, the employing unit may, in accordance with the conditions and procedures prescribed by the Labor Contract Law, dissolve a labor contract with a fixed term, a labor contract without a fixed term or a labor contract with a term of completion of a certain task with the laborer:
(1) The employing unit and the laborer reach an agreement through consultation;
(2) The laborer is proved to be unqualified for employment during the probationary period;
(3) The laborer seriously violates the rules and regulations of the employing unit;
(4) The laborer seriously neglects his duty and engages in malpractices for personal gain, causing significant damage to the employing unit;
(5) The laborer establishes a labor relationship with another employing unit at the same time, seriously affecting the completion of the task of the original unit, or refuses to make corrections after the notice is given by the employing unit;
(6) The laborer uses deception, coercion or takes advantage of a person's distress to cause the employing unit to conclude or alter a labor contract against its true intentions;
(7) The laborer is investigated for criminal responsibility according to law; (8) The laborer is unable to carry out his original job or the job arranged by the employing unit after the expiration of the prescribed medical treatment period;
(9) The laborer is not competent for his job and still not competent after training or job adjustment;
(10) The objective circumstances on which the labor contract is based have undergone major changes, which make it impossible to perform the labor contract, and the employing unit and the laborer fail to reach an agreement on the modification of the content of the labor contract after consultation;
(11) The employing unit is undergoing reorganization in accordance with the provisions of the Enterprise Bankruptcy Law;
(12) The labor contract of the employing unit is in serious difficulty;
(13) The enterprise changes its production, makes major technological innovation or adjusts its mode of operation, and still needs to reduce the number of personnel after the modification of the labor contract;
(14) Other major changes in the objective economic circumstances on which the labor contract is based make it impossible to perform the labor contract.
Article 20 Where the employing unit chooses to terminate the labor contract by paying the laborer one month's additional salary in accordance with the provisions of Article 40 of the Labor Contract Law, the additional salary paid shall be determined according to the standard of the laborer's salary of the previous month.
Article 21 Where the laborer has reached the statutory retirement age, the labor contract shall terminate. Article 22 Where a labor contract which has a term of completion of a certain task is terminated due to the completion of the task, the employing unit shall pay economic compensation to the laborer in accordance with the provisions of Article 47 of the Labor Contract Law.
Article 23 Where the employing unit terminates the labor contract of an employee who has suffered an industrial injury in accordance with the law, in addition to paying economic compensation in accordance with the provisions of Article 47 of the Labor Contract Law, it shall also pay one-time medical subsidies for industrial injury and disability employment subsidies in accordance with the relevant provisions of the State on industrial injury insurance.
Article 24 The certification of dissolution or termination of the labor contract issued by the employing unit shall clearly state the term of the labor contract, the date of dissolution or termination of the labor contract, the job position and the working years in the unit.
Article 25 Where the employing unit dissolves or terminates the labor contract in violation of the provisions of the Labor Contract Law and pays compensation in accordance with the provisions of Article 87 of the Labor Contract Law, it shall not pay economic compensation.The calculation of the compensation shall be calculated from the date of employment.
Article 26 Where the employing unit and the laborer agree on a service period, and the laborer dissolves the labor contract in accordance with the provisions of Article 38 of the Labor Contract Law, it shall not be regarded as a violation of the agreement on the service period, and the employing unit shall not require the laborer to pay liquidated damages. Where the employing unit and the laborer dissolve the labor contract with a prescribed service period under any of the following circumstances, the laborer shall pay liquidated damages to the employing unit in accordance with the provisions of the labor contract:
(1) the laborer seriously violates the rules and regulations of the employing unit;
(2) the laborer seriously neglects his duty and engages in malpractices for personal gain, causing significant damage to the employing unit;
(3) the laborer establishes labor relations with other employing units at the same time, seriously affecting the completion of the task of the unit, or refuses to correct after the proposal of the employing unit;
(4) the laborer uses fraud, coercion or taking advantage of a person's distress to make the employing unit conclude or alter the labor contract against its true intention;
(5) the laborer is investigated for criminal responsibility according to law.
Article 27 The monthly wage for economic compensation as provided for in Article 47 of the Labor Contract Law shall be calculated in accordance with the laborer's wage, including hourly wage or piecework wage and monetary income such as bonus, allowance and subsidy.Where the laborer's average wage of the 12 months prior to the dissolution or termination of the labor contract is lower than the local minimum wage standard, the local minimum wage standard shall be calculated.Where the laborer has worked for less than 12 months, the average wage shall be calculated in accordance with the actual number of months worked.
Chapter IV Special Provisions on Labor Dispatch Article 28 A labor dispatch unit established with contributions or in partnership by an employing unit or its affiliated unit that dispatches laborers to the unit or its affiliated unit shall be a labor dispatch unit that may not be established as provided for in Article 67 of the Labor Contract Law.
Article 29 An employing unit shall perform the obligations provided for in Article 62 of the Labor Contract Law and safeguard the lawful rights and interests of the dispatched laborers.
Article 30 A labor dispatch unit may not recruit dispatched laborers on a part-time basis.
Article 31 The economic compensation for a labor dispatch unit or a dispatched laborer for the legal dissolution or termination of a labor contract shall be provided for in Article 46 and Article 47 of the Labor Contract Law.
Article 32 Where a labor dispatch unit dissolves or terminates the labor contract of a dispatched laborer illegally, the provisions in Article 48 of the Labor Contract Law shall be applied.
Chapter V Legal Liability
Article 33 Where an employing unit violates the provisions of the Labor Contract Law regarding the establishment of a list of employees, the labor administrative department shall order it to make corrections within a prescribed time limit; if it fails to make corrections within the prescribed time limit, the labor administrative department shall impose a fine of not less than 2,000 yuan but not more than 20,000 yuan. Article 34 Where an employing unit fails to pay the laborer twice the monthly wages or compensation as stipulated in the Labor Contract Law, the labor administrative department shall order the employing unit to pay.
Article 35 Where an employing unit violates the Labor Contract Law and these Regulations on labor dispatch, the labor administrative department and other relevant competent departments shall order it to make corrections; if the circumstances are serious, a fine of not less than 1,000 yuan and not more than 5,000 yuan shall be imposed on each dispatched laborer; if damages are caused to the dispatched laborer, the labor dispatching unit and the employing unit shall bear joint and several liability for compensation.
Chapter VI Supplementary Provisions
Article 36 Complaints and reports on acts violating the Labor Contract Law and these Regulations shall be dealt with by the labor administrative department of the local people's government at or above the county level in accordance with the provisions of the Regulations on Supervision over Labor Security.
Article 37 Disputes between laborers and employing units over the conclusion, performance, alteration, dissolution or termination of labor contracts shall be dealt with in accordance with the provisions of the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes.
Article 38 These Regulations shall come into force as of the date of promulgation.
