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外商投资企业劳动管理规定 Administration of Labour in Foreign Investment Enterprises Provisions

2006-05-16 16:56   我要纠错 | 打印 | 收藏 | | |

劳部发[1994]246号
(Promulgated by the Ministry of Labour and Ministry of Foreign Trade and Economic Co-operation on, and effective as of, 11 August 1994.)
颁布日期:19940811  实施日期:19940811  颁布单位:劳动部、 对外贸易经济合作部

  Article 1 These Provisions are formulated in accordance with State laws and administrative regulations in order to safeguard the lawful rights and interests of foreign investment enterprises (hereafter, “enterprises”) and their staff and workers, and to establish, maintain and develop a stable and harmonious labour relationship between enterprises and their staff and workers.

  Article 2 These Provisions shall apply to Sino-foreign equity joint ventures, Sino-foreign co-operative joint ventures, wholly foreign-owned enterprises and Sino-foreign companies limited by shares established within the territory of the People's Republic of China as well as to their staff and workers.

  Article 3 The labour administration authorities of the People's Governments at and above the county level shall supervise enterprises in their employment and training of personnel, wages, insurance, fringe benefits, labour safety, labour health, etc. in accordance with these Provisions.

  Article 4 The rules and regulations formulated by an enterprise may not violate State laws and administrative regulations.

  Article 5 Enterprises may autonomously decide the time, terms and conditions and methods of recruiting staff and workers as well as the number of such staff and workers to be recruited, in accordance with relevant State laws and administrative regulations.

  When an enterprise recruits staff and workers, it may recruit from an employment agency (office) recognized by the labour authorities of the place where such enterprise is located. Subject to the consent of the local labour administration authorities, enterprises may also recruit directly or from other areas.

  Enterprises may not recruit staff and workers who have not been discharged from previous employment. The use of child labour is forbidden.

  Article 6 When an enterprise recruits staff and workers, it shall recruit Chinese staff and workers within the People's Republic of China. Where there is definitely a need to recruit foreign personnel or personnel from Taiwan, Hongkong or Macao, approval of the local labour administration authorities must be obtained and other relevant procedures for obtaining employment certificates carried out in accordance with relevant State regulations.

  Article 7 Enterprises shall establish a professional training system and provide professional training for their staff and workers. Staff and workers who are involved in technical work or require special technical skills must receive training and hold a certificate relevant to their positions. Training funds must be allocated and used in accordance with relevant State regulations.

  Article 8 A labour contract shall be entered into between individual staff and workers and enterprises in writing. Labour unions (where there are no labour unions, worker representatives shall be elected) may represent staff and workers in concluding collective contracts with enterprises on matters concerning labour wages, working hours, leave, labour safety and health, insurance, fringe benefits, etc. through consultations and negotiations.

  The content of a labour contract and collective contract shall conform with relevant State laws and administrative regulations.

  Article 9 Labour contracts shall be submitted to the local labour administration authorities for certification within one month of signing. Collective contracts shall be submitted to the local labour administration authorities for the record upon signing. Where the labour administration authorities do not raise any objection within 15 days of receiving a collective contract, such contract shall become effective immediately.

  Article 10 When a labour contract expires or when any of the conditions agreed by the two parties for termination of a labour contract occurs, such labour contract shall immediately terminate. Labour contracts may be renewed subject to agreement of both parties.

  Both parties must reach an agreement through consultations on the amendments of a labour contract, and carry out procedures for amending such labour contract. The amendments to a labour contract may be determined by the parties through consultations.

  Article 11 An enterprise, a staff member or worker may terminate a labour contract in any of the following circumstances:

  1. the parties to a labour contract have reached a consensus;

  2. an enterprise may terminate a labour contract where the employment conditions were not met during the probation period; the staff member or worker failed to perform the labour contract, seriously breached labour discipline or legally formulated rules and regulations of the enterprise or the staff member or worker underwent re-education through labour or were convicted of a criminal offense; or

  3. the staff member or worker may terminate a labour contract where the enterprise induced forced labour through violence, threats, imprisonment or any other means which jeopardized the personal freedom of the staff member or worker or the enterprise failed to perform the labour contract or violated State laws and administrative regulations, thereby infringing upon the lawful rights and interests of the staff member or worker.

  Article 12 After soliciting the opinion of a labour union, an enterprise may terminate a labour contract in any of the following situations, provided that it informs the staff member or worker of a notice in writing 30 days in advance:

  1. the staff member or worker fell ill or sustained a non-industrial injury and could not resume his original work or engage in other work arranged by the enterprise after expiration of the period of medical treatment;

  2. the staff member or worker was not able to work competently after receiving training or being transferred to another job;

  3. a change occurring in any of the objective circumstances under which the labour contract was concluded caused such contract impossible to be performed, and the parties were unable to reach an agreement on amendments of such contract after consultations; or

  4. other circumstances provided for in laws and administrative regulations.

  Article 13 An employing unit may not rescind a labour contract where staff and workers have contracted an occupational disease or sustained an industrial injury and have been confirmed to have lost all or part of their work capability, staff and workers have contracted an illness during a stipulated period of medical treatment, and female staff and workers are in their pregnancy, confinement or nursing period. If staff members or workers who have contracted an occupational illness or sustained an occupational disability request termination of their labour contracts, enterprises shall pay an employment and resettlement fee as a result of occupational disability to the social insurance institution in accordance with local government regulations.

  The time bar for medical treatment of staff and workers who have contracted occupational diseases or sustained non-industrial injuries shall be that specified in the existing regulations.

  Article 14 The distribution of wages by an enterprise shall be in accordance with the principle of equal pay for equal work. The wage levels of staff and workers shall be increased annually on the basis of the economic development of such enterprise. The wage levels of staff and workers shall be determined by such enterprise through collective negotiations and in accordance with the wage guidelines issued by the local People's Government or labour administration authorities.

  The minimum wage of staff and workers for the statutory working time may not be lower than the local minimum wage standard.

  Article 15 Enterprises must pay the salaries of staff and workers in currency on time and in full. Salaries shall be paid at least once a month, with income tax payable by staff and workers to be withheld.

  Article 16 Enterprises shall compile labour wage statistics in accordance with relevant regulations and shall such statistics to the local labour administration authorities, finance authorities, statistics authorities and departments in charge of the enterprises.

  Article 17 Enterprises must join social insurance schemes for pension, unemployment, medical, industrial and maternity insurance, etc. in accordance with relevant State regulations, and shall pay on time social insurance premiums in full to the social security institutions in accordance with standards determined by the local People's Governments. Insurance premiums shall be entered as expenses in accordance with State regulations. Staff and workers shall also individually pay pension insurance premiums in accordance with relevant regulations.

  Article 18 Enterprises shall establish a system for Labour Handbooks and Pension Insurance Handbooks for staff and workers, in which they shall record the term of service, wages and details of the payment of premiums for and proceeds of social insurance such as pension, unemployment, industrial and medical insurance, of their staff and workers.

  Article 19 Enterprises shall pay a lump-sum of living subsidies to staff and workers whose labour contracts have been rescinded in accordance with item (1) or (3) of Article 11 of these Provisions or in accordance with Article 12 of these Provisions. Where labour contracts have been rescinded in accordance with item (1) of Article 12 of these Provisions, medical subsidies shall be paid in addition to the living subsidies.

  Article 20 The standards for living and medical subsidies shall be calculated on the basis of the term of service of the staff and workers in their enterprises. The living subsidies shall be paid on the basis of one month's actual wages of the staff member or worker for every full year of service. The medical subsidies shall be paid on the basis of three months' actual wages of the staff member or worker where he has not completed five years of service in the enterprise, and six months' actual wages where the period of service completed is over five years. Where a staff member's or worker's period of service in an enterprise is six months or more but less than a year, calculations shall be made one the basis of one year service.

  The base for calculating and paying living and medical subsidies shall be calculated on the basis of the average monthly actual wages of the staff member or workers for the half year prior to the rescission of a labour contract.

  Article 21 When an enterprise announces its dissolution in accordance with relevant regulations or terminates a labour contract according to an agreement of both parties, it shall pay the required living and social insurance premiums in a lump sum to the social insurance institution in accordance with the relevant regulations of the People's Government of the place where such enterprise is located, for staff and workers who have sustained industrial injuries or contracted occupational diseases and have been certified by a hospital to have been in medical treatment or recuperation; for staff and workers whose medical treatment has been completed but have been confirmed by the labour appraisal committee to have totally or partially lost the work capability; for dependants of staff and workers who are receiving pensions for such staff and workers who died at work; and for female staff and workers who are in their pregnancy, confinement or nursing period, and staff and workers who do not join any social insurance scheme.

  Article 22 The fringe benefits of enterprise staff and workers while active shall be in accordance with relevant State regulations.

  Article 23 Enterprises shall withdraw and use a housing fund for the Chinese staff and workers in accordance with regulations of the local People's Government.

  Article 24 Staff and workers of enterprises shall enjoy leave such as festival holidays, public holidays, home leave, marriage leave, funeral leave, maternity leave for female staff and workers, etc. as specified by the State.

  Article 25 Where a dispute arises between an enterprise and its labour union or workers' representative as a result of the conclusion of a collective contract, and such dispute cannot be resolved through consultations between the two parties, the local labour administration authorities may arrange for the parties to handle the dispute through consultations. Where a dispute arises as a result of the performance of a collective contract, and such dispute cannot be resolved through consultations between the two parties, application for arbitration may be made or a suit may be instituted according to law.

  Article 26 Matters concerning labour disputes, labour safety and health, reporting and handling of accidents leading to industrial injuries, working hours, special protection for female staff and workers and minor workers, etc. in respect of an enterprise shall be handled in accordance with State regulations.

  Article 27 An enterprise, a staff member or worker that breaches a labour contract, thereby infringing upon the interests of the other party and causing the other party to suffer losses shall be liable for compensation.

  Article 28 Where an enterprise recruits a staff member or worker in violation of these Provisions, the local labour administration authorities may impose a fine on such enterprise of between five and ten times the average monthly wages of the recruited staff member or worker and may order the dismissal of such staff member or worker.

  Article 29 Where the wages of the staff and workers of an enterprise are lower than the local minimum wage standard, the local labour administration authorities shall order rectification to be made within a time bar. The enterprise shall not only make up the wages in accordance with the minimum wage standard but also pay an amount of between 20 per cent and 100 per cent of the discrepancy between the actual wages and the minimum wage standard as compensation to the staff and workers. Where such enterprise refuses to make up the discrepancy between the actual wages paid and the minimum wage standard, and to pay compensation, a fine of between one and three times the said discrepancy and compensation shall be imposed on such enterprise.

  Where an enterprise arbitrarily requires its staff and workers to work overtime, it shall immediately rectify the situation. Where no rectification is made, a fine shall be imposed at the rate of five times the hourly or daily average actual wages earned in that month by each staff member and worker on the basis of the stipulated total number of working hours.

  Article 30 Enterprises that fail to carry out social insurance procedures for their staff and workers shall retroactively carry out such procedures within a time bar set by the labour administration authorities. Where social insurance premiums are not paid within a time bar, the enterprises shall pay on a daily basis an additional late-payment fine of 2 per cent of the amount payable from the first day of delayed payment. The late-payment fine shall be included in the social insurance premiums.

  Article 31 Enterprises that violate provisions on labour safety and health shall be ordered to rectify the situation within a time bar or suspend business for reorganization, and shall be fined according to relevant regulations.

  Article 32 Where labour inspection by the labour administration authorities is obstructed or refused, a fine of less than 1 per cent of the monthly business and sales revenue shall be imposed.

  Article 33 Local labour administration authorities may impose the aforesaid fines only if rectification is not made after a warning is issued.

  Article 34 The aforesaid administrative fines shall be imposed by the labour administration authorities according to law. The amount of fines shall all be turned over to the State treasury.

  Article 35 These Provisions shall apply to equity joint ventures, co-operative joint ventures, wholly-owned enterprises and companies limited by shares that were invested and established in mainland China by overseas Chinese and investors from Taiwan, Hongkong and Macao.

  Article 36 The Ministry of Labour shall be responsible for the interpretation of these Provisions.

  These Provisions shall become effective as of the date of promulgation. In the event of a conflict between previous regulations concerning the administration of labour in foreign investment enterprises and these Provisions, these Provisions shall prevail.

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