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The Ministry of Commerce
Circular of the Ministry of Commerce of the People’s Republic of China on Printing and Issuing the Provisional Measures for Administration
of Labor Service to Foreign Contracted Projects
Overseas labor service to foreign contracted projects represented an organic part of the labor service hereto in China. In recent
years, with the sustained expansion of foreign contracted service in China, the multiplication of labor service to foreign contracted
projects played an active role for guaranteeing the due completion of related projects and promoting the developing this service.
Meanwhile, however, the imperfect administration of some foreign contracted projects triggered annually escalation of disputes in
foreign contracted projects, sit-ins and demonstrations by overseas labor service personnel in contravention of local laws, even
massive and malicious conflicts with local police. The above-mentioned accidents not only hindered the operation of foreign contracted
project, but blemished the whole image of Chinese enterprises, even exerted side effect upon the bilateral trade and diplomatic relations.
The following are the reasons for the frequent occurrence of labor dispute: first, some enterprises went against the provisions for
labor service to foreign contracted projects when sending contract workers abroad, failed to put into practice the standardized management
in the process of recruiting, sending and administrating contracted workers, giving excessive priority to the process of sending
while ignoring the relevant administration; second, foreign contracted units contracted or subcontracted the labor service to even
enterprises without any operation qualification, which resulted in difficulties and even failure to confirm and fulfill managerial
responsibility; third, some avaricious enterprises sought interest by improper means such as reducing labor service cost, deduction
and arrearage of wages, maliciously infringing the lawful rights of contract workers; fourth, the imperfection of the prevention
administrative measures and systems resulted in insufficient fulfillment and undue treatment of labor disputes; five, some contracted
workers, for their own interest, intentionally provoked disputes, intensified conflicts which resulted in the escalation and deterioration
of labor disputes.
In order to strengthen the administration of labor service to foreign contracted projects, further perfect the related systems, guarantee
the lawful rights and interests of personnel sent abroad to the foreign contracted project, promote the sound and orderly development
of foreign contracted enterprises, the Ministry of Commerce, in accordance with the related administrative measures on foreign labor
cooperation, hereby formulated, printed and distributed to you Interim Measures for Labor Service Foreign Contracted Projects (hereinafter
referred to as Measures). Please transmit it to related local sectors and departments for its strict implementation.
The business administrative authorities in charge, the related enterprises as well as the commercial
institutions in abroad embassies and consulates shall, in accordance with the above-mentioned Measures, conduct thorough investigation
on the labor service for the foreign contracted projects under construction, correct promptly the newly discovered problems, and
submit the investigation results and treatment proposals to the Ministry of Commerce (Department of Foreign Economic Cooperation)
prior to a designated date of 2006. Please report promptly when any problems occurred in the process of the implementation of the
Measures. We now give you the Notice.
Appendix: Provisional Measures for Administration of Labor Service to Foreign Contracted Projects
The Ministry of Commerce
December 1, 2005 Appendix:Provisional Measures for Administration of Labor Service to Foreign Contracted Projects
Chapter I General Principles
Article1
In order to strengthen the administration of labor service to foreign contracted projects, guarantee the lawful rights and interests
of personnel sent abroad to the foreign contracted project, and promote the sound and orderly development of foreign contracted enterprises,
Interim Measures for Labor Service Foreign Contracted Projects (hereinafter referred to as Measures) is formulated in accordance
with the related administrative measures on foreign labor cooperation and characteristics of personnel sent abroad to the project
contract.
Article2
“Overseas labor service to foreign contracted project” as mentioned in the Measures refers to the economic activities where the enterprises
with operation qualification of foreign contract (hereinafter referred to as related enterprises) send various labor service personnel
to the abroad contract projects( including subcontract project). The various labor service personnel shall be employed by the related
enterprises instead of the employer of the foreign party.
Article3
Overseas labor service to foreign contracted projects represents an organic part of the labor service hereto. In order to support
the development of foreign contracted project, the related enterprises are allowed to send various labor service personnel to foreign
contracted project, provided that the related issues shall be conducted in accordance with the relevant provisions.
Chapter II Responsibilities and Obligations of the Enterprises
Article4
Foreign labor service to foreign contracted project shall be operated by the general contractor (foreign contracted unit) or in accordance
with such means as the general contractor subcontracts part of project as well as the total labor service hereto to subcontractor
with operational qualification of foreign contracted project.
Article5
The general contractor shall not subcontract singly the foreign labor service. The subcontractor shall not subcontract overseas labor
service to the contracted project.
Article6
The general contractor or subcontractor shall sign with personnel lending abroad Labor Sending and Employment Contract, shall not
entrust any intermediary agency or individual to recruit personnel to be sent abroad for labor service.
Article7
The general contractor and subcontractor shall nail down their own responsibilities and obligations. The subcontractor shall be subject
to the relevant administration upon the labor service given by the general contractor. The general contractor shall be the chief
body responsible for overseas labor service management to the whole project.
Article8
The general contractor and subcontractors shall both, in accordance with Interim Measures for the Reserve Fund in Overseas Labor Service
Cooperation (No. 7, 2001 of The Ministry of Foreign Trade and Economic Cooperation and the Ministry of Commerce) and the Decision
for the Reserve Fund in Overseas Labor Service Cooperation ( No.2, 2003 of the Ministry of Commerce and the Ministry of Finance),
implement the reserve fund system for overseas labor cooperation.
Article9
The general contractor and subcontractors shall sign Labor Sending and Employment Contract with the personnel prior to their departure
for overseas labor service. The Contract shall comply with the relevant provisions of Notice of the Ministry of Foreign Trade and
Economic Cooperation on Printing and Distributing Main Clauses of Labor Service Export (Wai Jing Mao He Fa[1996] No. 105), and guarantee
the salaries hereof no less than that of personnel of the same type of labor service, and maintain and guarantee the lawful rights
and interests of the contract workers.
Article10
The general contractor and subcontractors shall, in time of conducting training for overseas labor service, thoroughly and genuinely
introduce in detail the related situations, working conditions and salaries and treatment of the destination country and the related
particulars of the related project, and instruct the personnel to be sent abroad to abide by the related law and rules of the country
where the project is located and not to intensify conflict by any improper means.
Article11
The general contractor and the subcontractors shall, in the construction process of the project, take seriously the problems and rational
proposals put forward hereby and give promptly reply and proper settlement.
Chapter III Project Checkup
Article12
The related enterprises shall, when applying for bidding (negotiated tendering) licensing of foreign contracted projects, submit the
related documents to the Ministry of Commerce as well as the following documents:
(i)
Form of Overseas Labor Service to Foreign Contracted Project( see Appendix). If the general contractor subcontracts part of the project
as well as the overseas business hereof, the general contractor shall submit the subcontract as well as the Form of Overseas Labor
Service to Foreign Contracted Project.
(ii)
The documents about the definite proposal hereon issued by the commercial organs of the related China’s abroad embassy (or consulate).
Chapter IV Settlement of Labor Service Dispute
Article13
The local administrative commercial authorities, the commercial institutions of the abroad embassy( consulate) as well as the related
enterprises shall attach great importance to the labor dispute on foreign contracted project and the treatment of accidents and establish
rapid response mechanism hereof, deal with the problems promptly so as to protect the lawful rights and interests of the personnel
sent abroad for labor service, and to prevent accidents from happening that might damage the fame of our nation or trigger diplomatic
dispute.
Article14
The local administrative authorities responsible for commerce shall strengthen the administration and guidance upon the related enterprises,
supervise the related enterprises and press them to establish accountability system.
Article15
The economic and commercial institutions in abroad embassy (or consulate) shall specially assign person(s) to be responsible for the
acceptance and settlement of labor dispute or accidents.
Article16
In case labor disputes or accident occur, the related enterprises shall in no way prevent the overseas personnel for labor service
from reflect the situation to the economic and commercial institutions in the embassy (or consulate) by proper means.
Article17
In the process of dealing with labor dispute or accidents to foreign contracted project, the related authorities, in their labor division
and treatment process, may conduct in accordance with Notice of the Ministry of Commerce on the Related Issues Concerning Treatment
of Overseas Labor Dispute or Accidents ( Shang He Fa[2003] No.249)
Chapter V Penalty Provisions
Article18
The Ministry of Commerce shall, in accordance with the related provisions, give appropriate penalty in light of the seriousness of
the cases.
Chapter VI Others
Article19
The Ministry of Commerce shall be responsible for the interpretation of the Measures.
Article20
The Measures shall come into effect as of 30 days after its promulgation.
Appendix 2:Form of Overseas Labor Service to Foreign Contracted Project
the Ministry of Commerce
November 1, 2005 Appendix 2Form of Overseas Labor Service to Foreign Contracted Projecthtm/e04706.htm Name of project
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Name of project |
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Construction Period |
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Estimated total number of persons in the construction of the project |
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General subcontractor of the project |
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Person to Contact |
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Means of contact |
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Subcontractor |
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Person to Contact |
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Means of contact |
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Schedule of personnel arrangement |
Manager |
Number of person |
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Composition |
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Source |
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| workers |
Particulars of their source |
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Remarks |
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Subscriber
signature
Date of filling
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