上海市劳动合同条例(英文).doc

Regulations of Shanghai Municipality on Labour Contract

(Adopted at the Thirty-third Session of the Standing Committee of the Eleventh Shanghai Municipal People's Congress on November 15, 2001)
Chapter ⅠGeneral Provisions
Article 1
For the purpose of adjusting labor relationship, establishing and upholding the labor contract system adapted to the socialist market economy, these Regulations are formulated in accordance with "The Labor Law of the People's Republic of China" and other relevant laws and administrative regulations with consideration of the actual situations in this Municipality.
Article 2
These Regulations apply to the employer units in the administrative area of this Municipality, including enterprises, self-employed workers, economic organizations, and state organs and institutions, and mass organizations, etc., (hereinafter jointly referred to as employer units), that establish or form labor contract relationship with the employees.
Article 3
The labor contract is the agreement concluded between the employee and the employer-unit that establishes labor relationship and specifies the rights and obligations of both parties.
Article 4
The labor contract shall be concluded in writing with the exception that is specially stipulated in these Regulations.
Article 5
The conclusion and alteration of the labor contract shall follow the principle of equality and negotiation to reach uniformity on one's own will, and shall satisfy the stipulations of laws, regulations and relevant rules.
A labor contract shall have immediately binding force once it is legally concluded, and the parties to the contract shall perform the obligations stipulated in the labor contract.
Article 6
The trade union shall provide guidance and help to the employee concerning the labor contract, and supervise the employer-units in their performance of the labor contract. In case that an employer-unit infringes an employee's legitimate rights and interests, the trade union shall negotiate with the employer-unit on behalf of the employee, and protect the legitimate rights and interests of the employee in the conclusion and performance of the labor contract according to law.
Article 7
The administrative department of labor security shall have the duty to guide, supervise and inspect the carrying out of the labor contract system.
Chapter ⅡThe Conclusion of the Labor Contract
Article 8
Before the conclusion of a labor contract, the employee has the right to know the relevant regulations and rules, labor conditions and payments of the employer-unit. The employer-unit shall illustrate them strictly according to the facts.
When employing laborers, the employer-unit has the right to know the health condition, knowledge and ability, and working experience of the employee. The employee shall state them strictly according to the facts.
Article 9
The text of the labor contract may be provided by the employer-unit, or be drawn up by both the employer and the employee. In case that the employer-unit provides the text, the principle of fairness shall be followed and shall not infringe upon the legitimate rights and interests of the employee.
The labor contract shall be written in Chinese, and may be coupled with a copy in a foreign language. If both parties to the contract have otherwise agreed, their agreement may be respected. In case that the labor contract is written in both Chinese and a foreign language, and their content differs, the Chinese version shall prevail. The labor contract shall have two identical copies, each party to the contract shall hold one copy.
Article 10
The labor contract shall contain the following clauses:
1. The valid period of the labor contract;
2. The job descriptions;
3. The labor protections and labor conditions;
4. The payments of remuneration for labor;
5. The labor disciplines;
6. The conditions for the termination of the labor contract; and
7. The liabilities for violation of the stipulations of the labor contract.
Apart from the compulsory clauses provided in the preceding clause, the parties to the contract may form other terms through negotiation in the labor contract.
Article 11
The valid period of employment in the labor contract shall be classified as fixed period, no fixed period, and task/project completion period. The valid period of the labor contract shall be fixed by the employer-unit and the employee through consultation.
Article 12
The labor contract shall become effective upon the date of signature. In case that the parties to the contract have otherwise agreed on the effective date and conditions of the labor contract, such agreement shall be respected.
Article 13
The parties to a labor contract may agree upon a trial period. In case the valid period of the labor contract is within 6 months, no trial period shall be allowed. In case the valid period is over 6 months but within one year, the trial period shall not be more than one month. In case the valid period is over one year but within 3 years, the trial period shall not be more than 3 months. In case the valid period is over 3 years, the trial period shall not be more than 6 months.
In case that the parties to a labor contract have only agreed upon a trial period, this trial period shall not be valid, and this trial period shall become the valid period of the labor contract.
Article 14
The parties to a labor contract may stipulate the service period of the laborers for whom the employer-unit paid the expenses of recruitment and employment, and training or to whom the employer-unit provided special treatment.
Article 15
The parties to a labor contract may stipulate the terms of confidentiality in the labor contract, or may conclude a separate confidentiality agreement. With the publication of the commercial secret, the terms of confidentiality and the terms agreed in the agreement of confidentiality shall lose their validity automatically.
The parties to a labor contract may stipulate in the labor contract or the confidentiality agreement the period of time in advance that the laborer who has the obligation to keep the employer-unit's commercial secret shall give notice if the laborer requests to terminate the labor contract. However, the period of time to give notice in advance shall not be longer than 6 months. During this period, the employer-unit may take appropriate measures to separate this employee from the commercial secret.
Article 16
The parties to the labor contract may stipulate in the labor contract or in the confidentiality agreement a clause restricting the laborer who has the obligation to keep the employer-unit's commercial secret to engage in any competitive business, and stipulate the payment of economic compensation to the laborer upon the termination or discharge of the labor contract. The scope of that within the restraint of the engagement in competitive business shall be limited to a certain period after the laborer leaves the employer-unit during which the laborer shall not operate his own business or operate or manage the business for others in competition with the former employer-unit. The time period of the restraint of the engagement in competitive business shall be stipulated by the parties to the labor contract within a limitation to 3 years, however, with the exception that if laws or administrative regulations have provided otherwise.
In case that the parties to the labor contract have stipulated the restraint of engagement in the competitive business, no period of advance notice on termination of the labor contract shall be stipulated.
The stipulation of restraint of engagement in the competitive business shall not be contrary to the provisions of laws and regulations.
Article 17
The payment of penalty by the laborer for his act of breach of contract may only be stipulated in the labor contract under following conditions:
1. Violating the term of service period; and
2. Violating the term of keeping commercial secret.
The amount of the penalty shall be stipulated according to the principle of being fair and reasonable.
Article 18
The standards of labor conditions, payments and remuneration etc. shall not be lower than the stipulations of the collective contract. If they are lower than the stipulations of the collective contract, the stipulations of the collective contract shall apply.
The collective contract shall be signed according to relevant laws and regulations.
Article 19
At the expiration of the labor contract, with unanimity reached through consultation by both parties to the contract, the labor contract may be renewed. However, there shall be no trial-period terms in the renewed labor contract.
Article 20
The labor contract shall be void under any one of the following cases:
1. Violating laws and administrative regulations; and
2. Signed by means of fraud or duress.
The avoided labor contract has no legal binding force from the inception. If a part of the labor contract has been affirmed as invalid, and if that does not affect the effectiveness of other parts, the remaining parts are still valid.
The invalidity of a labor contract shall be affirmed by the labor dispute arbitration committee or a people's court.
Article 21
The establishment of relationship of a labor contract between the employer-unit and the laborer shall go through the employment registration procedures at the agency designated by the labor security administrative department.
Chapter ⅢThe Performance and Alteration of the Labor Contract
Article 22
The parties to a labor contract shall perform the labor contract according to the effective date stipulated in the contract. In case that the effective date stipulated in the labor contract differs from the actual starting date, the actual starting date shall be affirmed as the effective date.
Article 23
Any alteration of the labor contract shall be done only if both parties reach unanimity through consultation, and in writing. If the parties to the contract fail to reach unanimity, the labor contract shall continue to be performed, with the exception that it is otherwise provided by laws or regulations.
Article 24
In case of merge or split-off of the employer-unit, the labor contract shall continue to be performed by the merged or the employer-unit. The labor contract may be altered or discharged if both parties to the contract reach unanimity through consultation, if the parties to the labor contract have otherwise agreed upon, that agreement shall be respected.
Article 25
In case that the employer-unit that who signed the labor contract is not the actual user of the laborer, the employer-unit may have an agreement with the actual user of the laborer that the actual user shall bear or partially bear the obligations to the laborer. In case that the actual user of the laborer does not bear the obligations stipulated by the agreement, the employer-unit shall bear the obligation to the laborer.
Article 26
During the valid period of the labor contract, the labor contract may be suspended under any one of the following situations:
1. The laborer is recruited for military service or serve for other legal obligations provided by the State;
2. The laborer can not perform the obligations stipulated in the labor contract for the time being, but there are the condition and possibility for him/her to continue the performance; and
3. Other situations provided by laws and regulations or stipulated in the labor contract.
With the disappearance of the situations on which the labor contract is suspended, the labor contract shall be continued unless laws or regulations have provided otherwise.
Article 27
In case that a laborer, without signing a written labor contract that should be signed, has performed the labor obligations as required by the employer-units, the labor contract relationship between the parties is established, and the laborer's labor remuneration and conditions shall be confirmed according to the following provisions:
1. In case that the labor remuneration and conditions are higher than the employer-units’rules and regulations, the terms of the collective contract or the corresponding contents of legal labor standards, they shall be ascertained according to the actual performed contents; and
2. In case that the labor remuneration and conditions are lower than the employer-units' rules and regulations, collective contract or legal labor standards, they shall be ascertained in favor of the laborer.
Article 28
In case that part of the terms in the labor contract does not satisfy the legal labor standard, the employer-unit shall bear the obligations according to the legal labor standards, and amend the part of the terms in the contract that does not satisfy the legal labor standards according to law.
Chapter ⅣThe Rescission and Termination of Labor Contract
Article 29
The labor contract may be rescinded by an agreement between both parties to the labor contract after unanimity is reached through consultation.
Article 30
In case that a laborer wants to rescind the labor contract, he/she shall inform the employer-unit in writing 30 days in advance.
Article 31
A laborer may inform the employer of the rescission of their labor contract at any time under any one of the following situations:
1. During the trial period;
2. The employer-unit forces the laborer to work by means of violence, threat or unlawful restraint of personal freedom; and
3. The employer-unit does not pay the labor remuneration or provide labor conditions according to the terms stipulated in the labor contract.
Article 32
The employer-unit may rescind a labor contract under any one of the following situations, however, the employer-unit shall inform, in writing, the laborer in person 30 days in advance:
1. Because of illness or non-industrial injury, and after the recovery period, the laborer can neither do the original work, nor a newly assigned work offered by the employer-unit;
2. The laborer is not competent to the job, and after training or re-arranging of job post, he/she is still not competent to the new one; and
3. The objective situations on which the labor contract is signed have changed significantly, and thus makes it impossible to perform the contract, and the parties to the labor contract cannot reach unanimity through consultation on the alteration of the labor contract.
In case that the employer-unit does not notify the laborer of the rescission of the contract 30 days in advance according to the provisions, the employer-unit shall perform the obligations stipulated in the labor contract to the laborer within 30 days upon the date of notification.
Article 33
Under any one of the following situations on the side of the laborer, the employer-unit may rescind the labor contract at any time:
1. Being proved do not comply with the employment requirement during the trial period;
2. Seriously violating the labor d