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劳务派遣暂行规定(英文版)

 Interim Provisions on Labor Dispatch

Decree of the Ministry of Human Resources & Social Security No.22

 

The Interim Provisions on Labor Dispatch, deliberated upon and adopted at the 21st executive meeting of the Ministry of Human Resources & Social Security held on 20 December 2013, are hereby promulgated and shall become effective on 1 March 2014.

 

Yin Weimin, Minister of the Ministry of Human Resources & Social Security

 

24 January 2014

 

Interim Provisions on Labor Dispatch

Chapter 1 General Provisions

 

Article 1 The Interim Provisions on Labor Dispatch (hereinafter referred to as the Provisions) are hereby developed in accordance with the Labor Contract Law of the People's Republic of China (hereinafter the Labor Contract Law),  Implementation Regulations for the Labor Contract Law of the People's Republic of China (hereinafter the "Implementation Regulations") and other applicable laws and administrative regulations in order to regulate the labor dispatch practices, safeguard the legitimate rights and interest of the workers and promote the development of a harmonious & stable labor relationship.

 

Article 2 The Provisions apply to the labor dispatch service provided by a labor dispatch service provider and the employ of dispatched workers by an enterprise (hereinafter referred to as an employer).

The Provisions also apply to the employ of dispatched workers by a partnership such as an accounting firm or a law firm incorporated by law, a foundation or a private non-enterprise entity.

 

Chapter 2 Scope and proportion of employment

 

Article 3 An employer may employ dispatched workers in temporary, auxiliary or substitute job positions only.

For the purpose of the preceding paragraph, a temporary job position refers to a job position that survives for no longer than 6 months, an auxiliary job position refers to a non-main business job position that provides services for main business, and a substitute job position refers to a job position that can be taken by other workers instead as a result that an employee of an employer fails to work due to full-time study, leave and so on over a certain period of time.

Before an employer determines an auxiliary position in which dispatched workers will be employed, its employees' congress or all employees shall hold discussions and provide proposals and opinions, and the employer shall negotiate with the labor union or employees' representatives on an equal basis, and the matters concerned shall be announced internally.

 

Article 4 An employer shall strictly control the number of dispatched workers it employed, which shall not exceed 10% of the total number of employees.

For the purpose of the preceding paragraph, the total number of employees refers to the sum of the number of employees with a labor contract with the employer and the number of dispatched workers the employer employed.

An employer that calculates the proportion of the dispatched workers it employed refers to an employer that may conclude a labor contract with its employees in accordance with the Labor Contract Law and its Implementation Regulations.

 

Chapter 3 Conclusion and performance of a labor contract/labor dispatch agreement

 

Article 5 A labor dispatch service provider shall conclude a written labor contract with the workers to be dispatched for a fixed period of at least 2 years by law.

 

Article 6 A labor dispatch service provider may agree with the workers to be dispatched on the probation period by law. However, it may agree on one probation period with the same worker to be dispatched only.

 

Article 7 A labor dispatch agreement shall specify the following:

(1) Title and nature of the job position in which the dispatched worker will be employed;

(2) Job location;

(3) Number of the dispatched workers and the dispatch period;

(4) Amount and payment method of labor remuneration determined in accordance with the "equal work, equal pay" principle;

(5) Amount and payment method of the social security insurance premium;

(6) Work hours, vocation & leave;

(7) Related benefits for the dispatched workers during work injury, birth-giving or illness;

(8) Occupational safety &hygiene and training;

(9) Expenses such as economic compensation;

(10) The term of the labor dispatch agreement;

(11) Payment method and criteria of the labor dispatch service fee;

(12) Liability for breach of the labor dispatch agreement;

(13) Other matters that shall be included in the labor dispatch agreement as set forth in the laws, regulations and rules.

 

Article 8 A labor dispatch service provider shall perform the following obligations for the workers it dispatched:

(1) Inform the dispatched workers of the matters stipulated in Article 8 of the Labor Contract Law, rules and regulations that shall be observed as well as the contents of the labor dispatch agreement in a truthful manner;

(2) Establish training policies to educate and provide the dispatched workers with pre-service training and safety education;

(3) Pay to the dispatched workers the labor remuneration and other benefits in accordance with the requirements of the State and the labor dispatch agreement by law;

(4) Pay the social security insurance premium and complete the social security insurance related formalities for the dispatched workers in accordance with the requirements of the State and the labor dispatch agreement by law;

(5) Urge the employer to provide the dispatched workers with labor protection and other occupational safety & hygiene conditions by law;

(6) Provide the proof of dissolution or termination of a labor contract by law;

(7) Provide assistance in resolving a dispute between the dispatched workers and the employer;

(8) Other matters specified in the laws, regulations and other rules.

 

Article 9 An employer shall, in accordance with Article 62 of the Labor Contract Law, provide the dispatched workers with the position-related welfare benefits without any discrimination against the dispatched workers.

 

Article 10 In the event that a worker dispatched by a labor dispatch service provider is injured in an incident while working for an employer, the labor dispatch service provider shall apply for determination of job injury by law, and the employer shall assist in the investigation/verification for the purpose of determination of job injury. The labor dispatch service provider shall bear the liability for job injury insurance, but it may negotiate with the employer over the compensatory approach.

In the event that a dispatched worker applies for the diagnosis and/or assessment of an occupational disease, the employer shall be responsible to deal with the matters relating to the diagnosis and/or assessment of the occupational disease, and provide the materials such as the dispatched worker's occupational history, history of exposure to the occupational disease and test results of hazardous factors at workplace for the occupational diseases that are necessary for the diagnosis and/or assessment of the occupational disease in a truthful manner, and the labor dispatch service provider shall provide the dispatched worker with other materials necessary for the diagnosis and/or assessment of the occupational disease.

 

Article 11 In the event that the administrative license of a labor dispatch service provider is not renewed upon expiry or its labor dispatch service license is rescinded or revoked, the labor contract already concluded with its dispatched workers shall continue to be performed until expiration by law. Both parties a labor contract may dissolve the labor contract through negotiations.

 

Article 12 Under any of the following circumstances, an employer may return a dispatched worker to the labor dispatch service provider concerned:

(1) The employer comes under the circumstances specified in Item 3, Article 40 and Article 41 of the Labor Contract Law;

(2) The employer is declared bankrupt, revoked of its business license, or ordered to close down or cancel registration by law, decides to dissolve in advance or not to continue the business upon expiry of the business period; and

(3) The labor dispatch agreement is terminated upon expiry.

During the period of time when the dispatched worker has no job after being returned, the labor dispatch service provider shall pay remuneration to the dispatched worker on a monthly basis at least in accordance with the minimum wage rates set by local people's government.

 

Article 13 In the event that a dispatched worker comes under the circumstances specified in Article 42 of the Labor Contract Law, prior to the expiry of the dispatch period, the employer concerned shall not return the dispatched worker to the labor dispatch service provider in accordance with Item 1, Paragraph 1, Article 12 of the Provisions. The dispatched worker may be returned only by extending the dispatch period upon its expiry until the disappearance of the circumstances.

 

Chapter 4 Dissolution and termination of a labor contract

 

Article 14 A dispatched worker may dissolve its labor contract with a labor dispatch service provider upon a 30 days' prior written notice. He/she may dissolve its labor contract with a labor dispatch service provider upon a 3 days' prior written notice during the probation period. The labor dispatch service providers shall inform the employer concerned of the dispatched worker's notice to dissolve the labor contract in a timely manner.

 

Article 15 In the event that a dispatched worker is returned by an employer in accordance with Article 12 of the Provisions, the labor dispatch service provider concerned may dissolve the labor contract with the dispatched worker if the dispatched worker who is to be re-dispatched does not agree with the labor dispatch service provider to maintain or improve the conditions agreed upon in the labor contract.

In the event that a dispatched worker is returned by an employer in accordance with Article 12 of the Provisions, the labor dispatch service provider concerned may not dissolve the labor contract with the dispatched worker if the dispatched worker to be re-dispatched does not agree with the labor dispatch service provider to decrease the conditions specified in the labor contract except where the dispatched worker requests to dissolve the labor contract.

 

Article 16 The labor contract between a labor dispatch service provider and a dispatched worker is terminated when the labor dispatch service provider is declared bankrupt, revoked of its business license, or ordered to close down or cancel registration by law, decides to dissolve in advance or not to continue the business upon expiry of the business period by law. The employer concerned shall negotiate with the labor dispatch service provider over the proper placement of the dispatched worker.

 

Article 17 In the event that a labor dispatch service provider dissolves or terminates its labor contract with a dispatched worker pursuant to Article 46 of the Labor Contract Law or Article 15, 16 of the Provisions, it shall provide the dispatched worker with economic compensation.

 

Chapter 5 Social security insurance in a trans-regional labor dispatch

 

Article 18 In the event that a labor dispatch service provider in a region dispatches a worker to another region, it shall obtain the social security insurance coverage for the dispatched worker at the place where the employer concerned is located, and pay the social security insurance premium in accordance with the rules at the place where the employer concerned is located, and the dispatched worker is entitled to the social security insurance benefits in accordance with the provisions of the State.

 

Article 19 In the event that a labor dispatch service provider dispatching a worker to an employer has set up a branch at the place where the employer is located, the branch shall complete the formalities for obtaining social security insurance coverage and pay the social security insurance premium for the dispatched worker.

In the event that a labor dispatch service provider dispatching a worker to an employer does not set up a branch at the place where the employer is located,, the employer shall complete the formalities for obtaining social security insurance coverage and pay the social security insurance premium for the dispatched worker on behalf of the labor dispatch service provider.

 

Chapter 6 Legal liability

 

Article 20 Any violation of the provisions of the Labor Contract Law and its Implementation Regulations concerning labor dispatch by a labor dispatch service provider or an employer shall be dealt with in accordance with Article 92 of the Labor Contract Law.

 

Article 21 In the event that a labor dispatch service provider dissolves or terminates a labor contract with a dispatched worker in violation of the Provisions, the case shall be subject to  Article 48 and Article 87 of the Labor Contract Law .

 

Article 22 In the event that an employer violates Paragraph 3, Article 3 of the Provisions, the competent department in charge of human resources and social security shall order it to take corrective actions and give it a warning; in the event of any damage caused to the dispatched worker concerned, the employer shall be liable to make compensation by law.

 

Article 23 Any violation of Article 6 of the Provisions by a labor dispatch service provider shall be dealt with in accordance with Article 83 of the Labor Contract Law.

 

Article 24 In the event that an employer returns a dispatched worker in violation of the Provisions, the case shall be subject to Paragraph 2, Article 92 of the Labor Contract Law.

 

Chapter 7 Supplementary Provisions

 

Article 25 The employ of dispatched workers by the permanent representative office of a foreign enterprise or by the representative office of a foreign financial institution in China as well as the employ of international oceangoing seamen by a seamen employer in the form of labor dispatch is exempted from the restrictions on the proportion of dispatched workers employed for temporary, auxiliary or substitutive job positions.

 

Article 26 Labor dispatch as referred to herein do not include the dispatch of employees of an employer to overseas areas for work or to a family or natural person to provide labor service.

 

Article 27 The employ of workers by an employer in the form of labor dispatch in the name of contracting and outsourcing shall be dealt with in accordance with the Provisions.

 

Article 28 In the event that the number of dispatched workers employed by an employer exceeds 10% of the total number of its employment prior to the effective date of the Provisions, the employer shall develop a scheme for employment adjustments, and reduce the proportion to the specified level within 2 years from the effective date of the Provisions. However, the labor contracts concluded by law prior to the release of the Decision of the Standing Committee of the National People's Congress on Amending the Labor Contract Law of the People's Republic of China and the labor dispatch agreements whose expiry date is in 2 years from the effective date of the Provisions may continue to be performed until expiry by law.

The employer shall file for record the scheme for employment adjustments it develops with the local competent administrative department in charge of human resources & social security.

The employer shall not employ new dispatched workers before reducing the number of dispatched workers prior to the effective date of the Provisions to the specified proportion as required.

 

Article 29 The Provisions shall become effective as of 1 March 2014.


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