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The Ministry of Labor
Provisions on the Labor Administration of the Enterprises of Foreign Investment
LaoBuFa [1994] No.246
August 11, 1994
Article 1
The provisions are formulated in line with State laws and administrative regulations to guarantee the legal rights and interests of
the enterprises with foreign investment (hereinafter referred to as enterprises) and their employees and establish, maintain and
develop stable and harmonious relations between the enterprises with foreign investment and the employees.
Article 2
The provisions are applied to the Chinese-foreign equity joint ventures, Chinese-foreign contractual joint ventures, foreign-capital
enterprises and Chinese-foreign limited companies established within the People’s Republic of China and their employees.
Article 3
The labor administrative departments of the people’s governments at county and above level exercise supervision over the enterprises
with foreign investment in accordance with this set of provisions with regard to their use and training of personnel, and the personnel’s
wages, insurance and welfare, as well as their working safety and hygiene conditions.
Article 4
The statute and system of the enterprises with foreign investment must not go against the State laws and administrative regulations.
Article 5
The enterprises with foreign investment may decide by themselves the time, conditions and ways of the employment and the number of
personnel they employ in line with relevant State laws and administrative regulations.
The enterprises with foreign investment may recruit employees from the employment services which have confirmed by the labor department
at the localities of the enterprises with foreign investment but under the approval of the labor administrative departments may also
recruit their employees directly or from other regions.
The enterprises with foreign investment must not recruit the employees who are still employed by other employers and are forbidden
to use child laborers.
Article 6
The enterprises with foreign investment should employ their Chinese employees within China; whereas there is a real need to employ
foreign personnel or personnel from Taiwan, Hong Kong and Macao regions, the employment should be made in line with relevant State
provisions and with the approval of the local labor administrative department, and through relevant formalities such as the acquirement
of employment certificates.
Article 7
The enterprises with foreign investment should establish certain training programmes for their employees. Those who are required to
do technical work or to have special skills must receive training and be certified capable for the job before they assume the posts.
A special programme for training must be drawn and used in line with relevant State provisions.
Article 8
Labor contracts are concluded in written form between individual employee and the enterprises with foreign investment. Trade unions
(elected worker representatives if no such unions are available) may conclude collective contracts with the enterprises with foreign
investment on behalf of the employees through consultations and negotiations with regard to matters like their remuneration, working
time and vacation, labor safety and hygiene condition and insurance and welfare.
Article 9
The labor contracts should be appraised and verified at the local labor administrative department within one month after they are
signed. The signed collective contracts should be reported to the local labor administrative departments for the record. The collective
contracts shall become effective whereas the labor administrative departments do not raise any different views within 15 days from
the date when they receive the text of the contracts concerned.
Article 10
Labor contracts terminate when their operation terms expire or conditions on which both parties agree to terminate the contracts appear.
Labor contracts may also be extended under agreement of both parties.
A labor contract may be revised upon agreement of both parties through consultation and due formalities should go through for the
change. The content of the changes in the contract may be decided by both parties of the contract.
Article 11
The enterprises with foreign investment or the employees may terminate the labor contracts in one of the following cases:
1.
Parties of the contract reach an agreement for the termination through consultations;
2.
An enterprise with foreign investment may terminate the labor contract during the trial employing period of a certain employee when
the employee is proved not up to the qualifications for recruitment, fails to carry out the contract, seriously violates labor discipline
and the lawful statute of the enterprise, or has been convicted to forced labor or other pronounced guilty criminal punishment; and
3.
An employee may terminate the labor contract if forced to work for the enterprises with foreign investment under violent treatment,
threat, or imprisonment or other means of restricting personal freedom by the enterprise with foreign investment; or if the enterprise
with foreign investment fails to carry out the labor contract or violates the State laws, administrative regulations and infringes
upon the legal rights and interests of the employee.
Article 12
Enterprises with foreign investment may terminate the labor contracts after soliciting the opinion of the trade union in one of the
following cases, but the employees should be notified in written form 30 days in advance:
1.
An employee inflicts an ill or injury not on post and thus cannot do the original work or other assignments by the enterprise with
foreign investment after the medical treatment period expires;
2.
An employee can still not do the work after training or reassignment;
3.
A contract fails to be carried out due to changes of conditions after the contract is signed and both sides cannot reach an agreement
through consultations on changing the contract; and
4.
Other matters which are set in laws and administrative regulations.
Article 13
The employer cannot terminate the labor contract when an employee is certified of losing or partly losing work ability due to occupational
disease or injury at post, or in regular medical treatment for illness or an woman employee is pregnant or is enjoying maternity
and lactation. Whereas an employee asks to terminate the labor contract due to occupational disease or becoming disabled because
of work the enterprise should pay the social insurance agency the reemployment settlement fee for those who becoming disabled because
of work in accordance with the stipulations of the local government.
The time limit for medical treatment of an employee who is ill or gets injured not because of work is set according to the current
provisions.
Article 14
The wage policy of the enterprises with foreign investment should follow the principle of equal pay for equal work. Wages of the employees
should be raised year by year on basis of the economic development of the enterprises with foreign investment. Wage standards of
the employees should be decided through collective negotiations by the enterprises with foreign investment according to the guideline
promulgated by the local people’s government or the labour administrative department.
The minimum payment for a legal working hour of an employee in enterprises with foreign investment must not be lower than the standard
for the local minimum payment.
Article 15
The enterprises with foreign investment must pay the employees cash wage in time and adequately at least once every month and withhold
and pay the income tax for the employees.
Article 16
The enterprises with foreign investment should make account of the wages of the employees in line with relevant provisions and report
the account to the local labor administrative department, financial department, statistics department and the enterprise’s authoritative
department in written form.
Article 17
Enterprises with foreign investment must join in old-age, unemployment, medical, on-job injures, child-bearing and other social insurance
for their employees in accordance with relevant State provisions, and pay full premium to the social insurance institutions in time
according to the standards set by the local people’s government. The insurance premium should be listed and paid in line with the
State provisions. Employees should also pay their own old-age insurance premium in line with relevant provisions.
Article 18
The enterprises with foreign investment should establish the system of “Labor Manual” and “Old-Age Insurance Manual” for the employees,
recording the age, wage and the payment and spending of various social insurance like old-age, unemployment, on-job injuries and
medical treatment of the employees.
Article 19
Enterprises with foreign investment should pay living allowance to employees whose labor contracts terminated in accordance with Clauses
1 and 3 Article 11 , and Article 12 of this set of provisions and also medical treatment allowance to employees whose labor contract
is terminated in accordance with Clause 1 of Article 12 of this set of provisions in addition to the life allowance.
Article 20
The standards of the living and medical treatment allowances are calculated according to the employees, working years in the enterprises
with foreign investment. The living allowance issued to the employees with a working period of one year should be equivalent to the
one month pay of the employees; the medical treatment allowance to the employees should be equivalent to three months pay to employees
with less than 5 years or working term and equivalent to six months’ pay to employees with more than 5 years of working term. The
working time is counted as 1 year whereas the actual working term is more than 6 months but less than one year.
The base for the living and the medical treatment allowances is the average monthly pay for the six months before the labor contract
is terminate.
Article 21
Whereas an enterprise with foreign investment disbands in line with relevant provisions or the labor contract is terminated with the
agreement of both parties through consultations, the enterprise with foreign investment should, in accordance with relevant provisions
of the local people’s government, pay the life and social insurance premiums as required to social insurance institutions for those
employees who are in medical treatment or are recuperating due to injury at work or occupational disease as confirmed by the hospital,
and those who entirely lose or partly lose working ability after medical treatment as confirmed by the labor appraisal committee,
and the dependents of the deceased at work who are receiving pensions, women employees who are pregnant or are at the time of maternity
or lactation, and those who get nothing insured.
Article 22
The current employees of the enterprises with foreign investment enjoy the welfare treatment in accordance with relevant State provisions.
Article 23
Enterprises with foreign investment should draw a certain amount of housing fund for their Chinese employees in line with the provisions
of the local people’s government.
Article 24
Employees of enterprises with foreign investment enjoy leaves for festivals, vacations, public holidays, visiting parents or spouses
and handling funeral affairs, and maternity leave for women employees in line with the State provisions.
Article 25
If the two sides cannot solve through consultations the disputes that occur between the enterprises with foreign investment and the
trade unions or the worker representatives while concluding collective labor contracts, the local labor administrative departments
may invite the disputing parties together for a solution; if the two sides cannot solve through consultations the disputes that occur
while the enterprises with foreign investment implement the collective contract, they may apply for arbitration or take legal proceeding
according to laws.
Article 26
Enterprises with foreign investment should follow the State provisions for the handling of labor disputes, labor safety and hygiene
conditions, report and treatment of accidents occurred in work, working time, special protection for women employees and those under
age.
Article 27
Enterprises with foreign investment or the employees should bear responsibilities for compensation if they violate the labor contract,
infringe upon the interests of the other party and causes losses to the other party.
Article 28
Whereas an enterprise with foreign investment violates this set of provisions in recruiting employees, the local labor administrative
department may impose on the enterprise with foreign investment a fine in the amount of 5 to 10 times of the average monthly pay
of the recruited employees.
Article 29
Whereas an employees’ wage of an enterprise with foreign investment is lower than the local minimum wage standard, the local labor
administrative department shall order the enterprise with foreign investment to correct within a set time, and, apart from making
up for the wage according to the minimum standard, should pay the employee a compensation fund in the amount of 20 to 100 percent
of the difference between the actual paid wage and the minimum wage standard. If the enterprise with foreign investment fails to
pay the make-up and the compensation fund, it will be imposed a fine which is 1 to 3 times the make-up and the compensation fund.
An enterprise with foreign investment should correct at once the decision to ask employees to work extra hours and if it fails to
do so, it will be imposed a fine which is 5 times the actual monthly or daily pay depending on the total extra time.
Article 30
An enterprise with foreign investment that does not go through the formalities of social insurance for the employees should do it
in a set time in line with the provisions of labor administrative department; if it fails to pay various social insurance in time,
it should pay 2 percent of the delaying fund beginning from the date of expiration. And the delaying fund is put into various social
insurances.
Article 31
Enterprises with foreign investment should be ordered to correct or be closed to set the thing straight in a set time if it violates
provisions about labor safety and hygiene conditions and in addition be imposed a fine in line with relevant provisions.
Article 32
An enterprise that obstructs or refuses the labor supervision by the labor administrative department will be imposed a fine less than
1 percent of its monthly business turnover and sales volume.
Article 33
The above-mentioned fines may only be imposed after the enterprise with foreign investment refuses to correct even after the local
labor administrative department issues warning to the enterprise.
Article 34
The above-mentioned administrative punishments are carried out by the labor administrative department according to laws and all the
fines are handed over to the State treasury.
Article 35
The provisions are also applied to the joint equity- ventures, cooperative ventures, solely owned enterprises and limited- liability
companies established in the Chinese mainland by overseas Chinese and investors from Taiwan, Hong Kong and Macao.
Article 36
The Ministry of Labor is enpost_titled to interpret this set of provisions.
These provisions shall enter into force as of the date of promulgation and shall dominant should there be any conflict between the
provisions and the past labor administration provisions concerning enterprises with foreign investment.
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