(4) Another major change in the objective economic circumstances relied upon at the time of conclusion of the employment contracts, rendering them unperformable.
When reducing the workforce, the Employer shall retain with priority persons:
(1) Who have concluded with the Employer fixed-term employment contracts with a relatively long term; (2) Who have concluded open-ended employment contracts with the Employer; or
(3) Who are the only ones in their families to be employed and whose families have an elderly person or a minor for whom they need to provide.
If an Employer that has reduced its workforce pursuant to the first paragraph hereof hires again within six months, it shall give notice to the persons dismissed at the time of the reduction and, all things being equal, hire them on a preferential basis. Article 42
An Employer may not terminate an employment contract pursuant to Article 40 or Article 41 hereof if the Employee:
(1) is engaged in operations exposing him to occupational disease hazards and has not undergone a pre-departure occupational health check-up, or is suspected of having contracted an occupational disease and is being diagnosed or under medical observation;
(2) Has been confirmed as having lost or partially lost his capacity to work due to an occupational disease contracted or a work-related injury sustained with the Employer;
(3) Has contracted an illness or sustained a non-work-related injury, and the set period of medical care therefore has not expired;
(4) Is a female employee in her pregnancy, confinement or nursing period;
(5) Has been working for the Employer continuously for not less than 15 years and is less than 5 years away from his legal retirement age;
(6) Finds himself in other circumstances stipulated in laws or administrative statutes. Article 43
When an Employer is to terminate an employment contract unilaterally, it shall give the Trade union advance notice of the reason therefore. If the Employer violates laws, administrative statutes or the employment contract, the Trade union has the right to demand that the Employer rectify the matter. The Employer shall study the Trade union’s opinions and notify the Trade union in writing as to the outcome of
its handling of the matter. Article 44
An employment contract shall end if: (1) Its term expires;
(2) The Employee has commenced drawing his basic old age insurance pension in accordance with the law; (3) The Employee dies, or is declared dead or missing by a People’s Court; (4) The Employer is declared bankrupt;
(5) The Employer has its business license revoked, is ordered to close or is closed down, or the Employer decides on early liquidation; or
(6) Another circumstance specified in laws or administrative statutes arises. Article 45
If an employment contract expires and any of the circumstances specified in
Article 42 hereof applies, the term of the employment contract shall be extended until the relevant circumstance ceases to exist, at which point the contract shall end. However, matters relating to the ending of the employment contract of a Employee who has lost or partially lost his capacity to work as specified in item (2) of Article 42 hereof shall be handled in accordance with state regulations on work-related injury insurance. Article 46
In any of the following circumstances, the Employer shall pay the Employee severance pay: (1) The employment contract is terminated by the Employee pursuant to Article 38 hereof;
(2) The employment contract is terminated after such termination was proposed to the Employee by the Employer pursuant to Article 36 hereof and the parties reached agreement thereon after consultations; (3) The employment contract is terminated by the Employer pursuant to Article 40 hereof;
(4) The employment contract is terminated by the Employer pursuant to the first paragraph of Article 41 hereof;
(5) The employment contract is a fixed–term contract that ends pursuant to item (1) of
Article 44 hereof, unless the Employee does not agree to renew the contract even though the conditions offered by the Employer are the same as or better than those stipulated in the current contract; (6) The employment contract ends pursuant to item (4) or (5) of Article 44 hereof;
(7) Other circumstances specified in laws or administrative statutes. Article 47
A Employee shall be paid severance pay based on the number of years worked with the Employer at the rate of one month’s wage for each full year worked. Any period of not less than six months but less than one year shall be counted as one year. The severance pay payable to a Employee for any period of less than six months shall be one-half of his monthly wages.
If the monthly wage of a Employee is greater than three times the average monthly wage of employees in the Employer’s area as published by the People’s Government at the level of municipality directly under the central government or municipality divided into districts of the area1 where the Employer is located, the rate for the severance pay paid to him shall be three times the average monthly wage of employees and shall be for not more than 12 years of work.
For the purposes of this Article, the term “monthly wage” means the Employee’s average monthly wage for the 12 months prior to the termination or ending of his employment contract. Article 48
If an Employer terminates or ends an employment contract in violation of this
Law and the Employee demands continued performance of such contract, the Employer shall continue performing the same. If the Employee does not demand continued performance of the employment contract or if continued performance of the employment contract has become impossible, the Employer shall pay damages pursuant to Article 87 hereof. Article 49
The state will take measures to establish a comprehensive system that enables Employees’ social insurance accounts to be transferred from one region to another and to be continued in such other region. Article 50
At the time of termination or ending of an employment contract, the Employer shall issue a proof of termination or ending of the employment contract and, within 15 days, carry out the procedures for the transfer of the Employee’s file and social insurance account.
The Employee shall carry out the procedures for the handover of his work as agreed by the parties. If relevant provisions of this Law require the Employer to pay severance pay, it shall pay the same upon completion of the procedures for the handover of the work.
The Employer shall keep terminated or ended employment contracts on file for not less than two years, for reference purposes.
CHAPTER 5 SPECIAL PROVISIONS SECTION 1 COLLECTIVE CONTRACT Article 51
After bargaining on an equal basis, enterprise employees, as one party, and their Employer may conclude a collective contract on such matters as labor compensation, working hours, rest, leave, work safety and hygiene, insurance, benefits, etc. The draft of the collective contract shall be presented to the employee representative congress or all the employees for discussion and approval.
A collective contract shall be concluded by the Trade union, on behalf of the enterprise’s employees, and the Employer. If the Employer does not yet have a Trade union, it shall
1 Translator’s note: The phrase “of the area” does not appear in the Chinese text. It has been added by us in view of the context.
Conclude the collective contract with a representative put forward by the Employees under the guidance of the Trade union at the next higher level. Article 52
Enterprise employees, as one party, and their Employer may enter into specialized collective contracts addressing labor safety and hygiene, protection of the rights and interests of female employees, the wage adjustment mechanism, etc. Article 53
Industry-wide or area-wide collective contracts may be concluded between the Trade union on the one hand and representatives on the side of the enterprises on the other hand in industries such as construction, mining, catering services, etc. within areas below the county level. Article 54
After a collective contract has been concluded, it shall be submitted to the labor administration authority. The collective contract shall become effective upon the lapse of 15 days from the date of receipt thereof by the labor administration authority, unless the said authority raises any objections to the contract. A collective contract that has been concluded in accordance with the law is binding on the Employer and
the Employees. An industry-wide or area-wide collective contract is binding on Employers and Employees in the industry or in the area in the locality concerned. Article 55
The rates for labor compensation, standards for working conditions, etc. stipulated in a collective contract may not be lower than the minimum rates and standards prescribed by the local People’s Government. The rates for labor compensation, standards for working conditions, etc. stipulated in the employment contract between an Employer and a Employee may not be lower than those stipulated in the collective contract. Article 56
If an Employer’s breach of the collective contract infringes upon the labor rights and interests of the employees, the Trade union may, in accordance with the law, demand that the Employer assume liability. If a dispute arising from the performance of the collective contract is not resolved following consultations, the Trade union may apply for arbitration and institute an action according to law.
SECTION 2 Placement Article 57
Staffing firms shall be established in accordance with the relevant provisions of the Company Law and have registered capital of not less than RMB￥500,000. Article 58
Staffing firms are Employers as mentioned in this Law and shall perform an Employer’s obligations toward its Employees. The employment contract between a staffing firm and a Employee to be placed shall, in addition to the matters specified in Article 17 hereof, specify matters such as the unit with which the Employee will be placed, the term of his placement, his position, etc.
The employment contracts between staffing firms and the Employees to be placed shall be fixed term employment contracts with a term of not less than two years. Staffing firms shall pay labor compensation on a monthly basis. During periods when there is no work for Employees to be placed, the staffing firm shall pay such Employees compensation on a monthly basis at the minimum wage rate prescribed by the People’s Government of the place where the staffing firm is located. Article 59
When placing Employees, staffing firms shall enter into staffing agreements with the units that accept the
中华人民共和国劳动合同法（英文版） - 图文
