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Decision of the Standing Committee of the National People's Congress on Amending the Employment Contract             Law of the People's Republic of China
released byboooming Time2013-4-25 14:25:39 Read1049Time

 Decision of the Standing Committee of the National People's Congress on Amending the Employment Contract Law of the People's Republic of China (2012) [Not Yet Valid]

 

The Decision of the Standing Committee of the National People's Congress on Amending the Employment Contract Law of the People's Republic of China, as adopted at the 30th Session of the Standing Committee of the Eleventh National People's Congress of the People's Republic of China on December 28, 2012, is hereby issued and shall come into force on July 1, 2013.

 

President of the People's Republic of China: Hu Jintao

 

December 28, 2012

 

Decision of the Standing Committee of the National People's Congress on Amending the Employment Contract Law of the People's Republic of China

(Adopted at the 30th Session of the Standing Committee of the Eleventh National People's Congress of the People's Republic of China on December 28, 2012)

 

As decided at the 30th Session of the Standing Committee of the Eleventh National People's Congress, the Employment Contract Law of the People's Republic of China shall be amended as follows:

 

I. Article 57 is amended to read: To engage in the labor dispatch business, an entity shall satisfy the following conditions:

“(1) Its registered capital is not less than two million yuan;

“(2) It has fixed business premises and facilities suitable for businesses;

“(3) It has labor dispatch management rules in compliance with the provisions of laws and administrative regulations; and

 

“(4) It satisfies other conditions prescribed by laws and administrative regulations.

 

“To engage in the labor dispatch business, an entity shall apply to the labor administrative department for administrative licensing in accordance with law; and after obtaining licensing, shall undergo corresponding company registration formalities in accordance with law. No entity or individual may engage in the labor dispatch business without licensing.”

 

II. Article 63 is amended to read: Dispatched workers shall have the right to receive the same pay with that received by the employers' employees for the same work. An employer shall, under the principle of equal pay for equal work, adopt the same methods for the distribution of labor remuneration for the dispatched workers and its employees at the same position. Where the employer has no employee at the same position, it shall determine the remuneration by reference to that paid to employees at the same or similar position at the place where the employer is located.

 

“The employment contracts concluded between the labor dispatch entity and dispatched workers and the labor dispatch agreement concluded between the labor dispatch entity and the employer shall indicate or stipulate that the labor remuneration paid to dispatched workers shall comply with the provisions of the preceding paragraph.”

 

III. Article 66 is amended to read: “Employment under employment contracts is the basic form of enterprises' employing workers in China. Labor dispatch is a supplementary form and shall exclusively apply to provisional, auxiliary or substitutive positions.

 

“ ‘Provisional position' as prescribed in the preceding paragraph means a position that exists for less than six months; ‘auxiliary position' means a non-major business position providing services to main business positions; and substitutive position' means a position that may be held by any other employee on a substitutive basis during a certain period of time when the employee of the employer who originally holds the position is unable to work because such employee is undergoing full-time training, on vacation or for any other reason.

 

“The employer shall strictly control the number of dispatched workers, which shall not exceed a certain proportion of its total employees, and the specific proportion shall be prescribed by the labor administrative department of the State Council.”

 

IV. Article 92 is amended to read: “Where any entity, in violation of the provisions of this Law, engages in the labor dispatch business without licensing, the labor administrative department shall order the violator to cease its violations, confiscate its illegal income, and impose a fine of one up to five times the amount of illegal income; or if there is no illegal income, may impose a fine of not more than 50,000 yuan on the violator.

 

“Any labor dispatch entity or employer that violates any provision of this Law on labor dispatch shall be ordered by the labor administrative department to make corrections within a prescribed time limit; and if the entity or employer fails to do so within the prescribed time limit, it shall be fined 5,000 yuan up to 10,000 yuan per employee, and for a labor dispatch entity, its license for engaging in the labor dispatch business shall be revoked. Where the employer causes any damage to the dispatched worker, the labor dispatch entity and the employer shall assume joint and several liabilities.”

 

This Decision shall come into force on July 1, 2013.

 

The employment contracts and labor dispatch agreements that have been concluded in accordance with law before the issuance of this Decision shall continue to be implemented until their term is expired, however, any content in the employment contracts and labor dispatch agreements that is in non-compliance with the provisions of this Decision on adopting the same methods for the distribution of labor remuneration under the principle of equal pay for equal work shall be changed in accordance with this Decision. An entity that engages in the labor dispatch business before this Decision comes into force may only engage in new labor dispatch business after it has obtained the administrative license and undergone company modification registration formalities within one year after this Decision comes into force. The specific measures shall be formulated by the labor administrative department and relevant departments of the State Council.

 

The Employment Contract Law of the People's Republic of China shall be amended according to this Decision and reissued.

 
 
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