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  • 上海市劳动合同条例 Shanghai Municipality, Labour Contract Regulations

    (Promulgated on 15 November 2001 and effective as of 1 May 2002.)
    颁布日期:20011115  实施日期:20020501  颁布单位:上海市人大常委会

      PART ONE GENERAL PROVISIONS

      Article 1 These Regulations are formulated pursuant to the PRC, Labour Law and relevant laws and administrative regulations and in the light of the actual circumstances of this Municipality in order to adjust labour relations and to establish and maintain a labour contract system appropriate for a socialist market economy.

      Article 2 These Regulations apply to employers such as enterprises, individually-owned economic organizations, State organs, institutions and social organizations (Employer(s)) that establish or form labour contract relationships with workers in the administrative area of this Municipality.

      Article 3 A labour contract is an agreement between a worker and an Employer to establish a labour relationship and to specify the rights and obligations of both parties.

      Article 4 Labour contracts shall be concluded in writing unless otherwise specifically provided for herein.

      Article 5 Conclusion and modification of labour contracts shall abide by the principles of equality, voluntariness and consensus through consultation and comply with the provisions of laws, regulations and the relevant rules.

      A labour contract shall be legally binding once it is concluded in accordance with the law, and the parties must perform the obligations stipulated therein.

      Article 6 Labour unions shall provide workers with guidance and assistance in respect of labour contracts and supervise the performance of labour contracts by Employers. If an Employer infringes upon the lawful rights and interests of a worker, the labour union shall deal with the Employer on behalf of the worker and protect, in accordance with the law, the lawful rights and interests of the worker in his entry into and performance of the labour contract.

      Article 7 The administrative department for labour and social security has the duties of guidance, supervision and inspection with regard to the implementation of the labour contract system.

      PART TWO CONCLUSION OF LABOUR CONTRACTS

      Article 8 Before a worker concludes a labour contract, the worker has the right to be informed, and the Employer shall truthfully inform the worker, of the relevant rules and procedures of the Employer, the labour conditions and the labour remunerations.

      When an Employer recruits a worker, the Employer has the right to be informed, and the worker shall truthfully inform the Employer, of the worker's health, knowledge, skills and work experience.

      Article 9 The text of a labour contract may be provided by the Employer, or it may be drafted jointly by the Employer and the worker. The text of a labour contract provided by the Employer shall adhere to the principle of fairness and shall not harm the lawful rights and interests of the worker.

      A labour contract shall be written in Chinese and may at the same time be written in a foreign language. Where the parties have agreed otherwise, their agreement shall prevail. If the contents of the Chinese and the foreign language versions of a labour contract are inconsistent, the Chinese version of the labour contract shall prevail. A labour contract shall be written in two counterparts, and each party shall hold one counterpart.

      Article 10 A labour contract shall contain the following clauses:

      (1) term of the labour contract;

      (2) job description;

      (3) labour protection and working conditions;

      (4) labour remuneration;

      (5) labour discipline;

      (6) conditions for termination of the labour contract; and

      (7) liability for breach of the labour contract.

      In addition to the mandatory clauses specified above, the parties may include in the labour contract other contents agreed upon

    between them through negotiation.

      Article 11 Terms of labour contracts are divided into fixed terms, open terms and terms determined on the job basis. The term of a labour contract shall be determined by the Employer and the worker through negotiation.

      Article 12 A labour contract shall be effective as of the date of signature by the parties. Where the parties have agreement with regard to the date and conditions of effectiveness, their agreement shall prevail.

      Article 13 The parties to a labour contract may agree upon a probation period. In a labour contract with a term of less than six months, no probation period shall be provided for; if the term is over six months but less than one year, the probation period shall not exceed one month; if the term is over one year but less than three years, the probation period shall not exceed three months; and if the term is over three years, the probation period shall not exceed six months.

      If the parties to the labour contract have agreed only on a probation period and such probation period is not established, that period shall be the term of the labour contract.

      Article 14 The parties to a labour contract may agree upon a service term for a worker who will be recruited, used, trained or provided with other special treatment at the expense of the Employer.

      Article 15 The parties to a labour contract may agree upon a confidentiality clause in the labour contract or enter into a separate confidentiality agreement. When the trade secret enters into the public domain, the contents agreed upon in the confidentiality clause or confidentiality agreement shall automatically become void.

      Where the worker has an obligation to maintain the confidentiality of the trade secrets of the Employer, the parties to the labour contract may agree upon an advance notice period in the labour contract or the confidentiality agreement for the worker to request termination of the labour contract, provided that this advance notice period does not exceed six months. During this period, the Employer may carry out anti-disclosure measures accordingly.

      Article 16 Where the worker has an obligation to maintain the confidentiality of the trade secrets of the Employer, the parties to the labour contract may agree upon a no-competition clause in the labour contract or the confidentiality agreement, and may agree to grant economic compensation to the worker upon termination or rescission of the labour contract. The scope of restriction of competition shall be limited to, within a certain period following the departure of the worker from the Employer, that the worker may not himself engage or for any third party in the business that competes with the former Employer. The period of restriction of competition shall be agreed upon by the parties to the labour contract. Its maximum length shall not exceed three years unless otherwise stipulated by laws and administrative regulations.

      If the parties to the labour contract have agreed upon restriction of competition, they shall not further agree upon an advance notice period for rescission of the labour contract.

      Agreement on restriction of competition may not violate provisions of laws or regulations.

      Article 17 If a labour contract provides for liquidated damages for breach of contract by the worker, such damages shall apply only to:

      (1) breach of the agreement on the service term; or

      (2) breach of the agreement to maintain the confidentiality of trade secrets.

      The amount of liquidated damages for breach of contract shall be agreed upon on the principles of fairness and reasonableness.

      Article 18 The standards for labour conditions and labour remuneration agreed upon in the labour contract may not be lower than those stipulated in the collective contract. If they are lower than those stipulated in the collective contract, the p

    rovisions of the collective contract shall apply.

      Collective contracts shall be concluded in accordance with the relevant laws and regulations.

      Article 19 A labour contract may be renewed upon expiration of its term if the parties reach a consensus through consultation. No probation period shall be agreed upon in a renewed labour contract.

      Article 20 A labour contract shall be invalid if:

      (1) it violates laws or administrative regulations; or

      (2) it is concluded through such means as fraud or threat.

      An invalid labour contract shall not be legally binding as of its conclusion. If a part of the labour contract has been determined to be invalid, the other parts of it shall remain valid to the extent that the invalid part does not have an impact on the effectiveness of such other parts.

      The invalidity of a labour contract shall be determined by a labour dispute arbitration commission or a people's court.

      Article 21 If an Employer forms a labour contract relationship with a worker, it shall complete the labour employment registration with an agency designated by the administrative department for labour and social security.

      PART THREE PERFORMANCE AND MODIFICATION OF LABOUR CONTRACTS

      Article 22 The parties to a labour contract shall perform the labour contract according to the commencement and ending times agreed upon therein.

      If the commencement and ending times agreed upon in the labour contract are inconsistent with the commencement and ending times of actual performance, determination shall be made on the basis of the commencement and ending times of actual performance.

      Article 23 Modification of a labour contract shall require the consensus of the parties through consult

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