"Zhejiang province labor contract measures" to have
Labor contract in Zhejiang province
(deliberated and adopted at the 76th executive meeting of Zhejiang Provincial People's Government in 2002 10/8)
Chapter I General Provisions
Article 1 In order to standardize the labor contract system and protect the legitimate rights and interests of the parties to the labor contract according to law, these Measures are formulated in accordance with the Labor Law of People's Republic of China (PRC) and other relevant laws and regulations, combined with the actual situation of this province.
Article 2 These Measures shall apply to enterprises, individual economic organizations, state organs, institutions, social organizations, private non-enterprise units (hereinafter referred to as employing units) and workers who have established or formed labor contract relations with them within the administrative area of this province.
Article 3 A labor contract shall be concluded when establishing labor relations. The conclusion and modification of labor contracts shall follow the principles of equality, voluntariness and unanimity through consultation, and shall not violate the provisions of laws, regulations and rules.
The parties must perform the labor contract concluded according to law.
Article 4 The administrative departments of labor and social security of the people's governments at or above the county level (hereinafter referred to as the labor and social security departments) shall be responsible for the supervision and management of the implementation of the labor contract system within their respective administrative areas. The supervision and management of the implementation of the labor contract system by the central and provincial employers shall be the responsibility of the provincial labor and social security department or its entrusted labor and social security department.
Departments of industry and commerce, taxation, economy and trade, health, civil affairs, public security, construction, women's federations, disabled persons' federations and other organizations shall, according to their respective functions and duties, do a good job in supervising the implementation of the labor contract system according to law.
Article 5 Trade unions shall safeguard the legitimate rights and interests of laborers according to law and supervise the employing units to implement relevant labor laws, regulations, rules and these Measures.
Article 6 The employing unit shall establish and improve the internal labor contract management system and other rules and regulations according to law, and accept the supervision and inspection by the labor security department and other relevant departments.
Chapter II Conclusion and Performance of Labor Contracts
Article 7 Before signing a labor contract, workers have the right to know the relevant rules and regulations, working conditions, labor remuneration and occupational hazards of the employing unit, and the employing unit shall truthfully explain them in writing.
When employing workers, the employer has the right to know the health status, knowledge, skills and work experience of the workers, and the workers shall truthfully explain them.
Article 8 An employing unit shall be established according to law, be able to pay wages and social insurance premiums, provide labor protection conditions and bear corresponding civil liabilities.
Laborers should reach the legal age of employment and have the ability to fulfill their obligations under the labor contract.
When employing minors, the employing unit shall abide by the relevant provisions of the state and the province.
Article 9 A labor contract shall be concluded in writing. Each party holds one copy.
The text of the labor contract can be provided by the employer or drafted by the employer and the employee. The contract text provided by the employer shall follow the principle of fairness and shall not harm the legitimate rights and interests of workers.
Advocate the use of normative texts of labor contracts provided by the labor and social security departments. According to the characteristics of the industry, the trade association can design the general text of the labor contract.
Article 10 The employing unit shall conclude a labor contract with the employee within 15 days from the date of employment, and go through the formalities of employment filing, labor contract filing and social insurance registration with the labor security department within 15 days from the date of conclusion of the labor contract.
The labor contract shall be signed by the legal representative of the employer and the employee himself, and both parties shall sign and seal it (the employer shall affix its official seal). The legal representative of the employer may also entrust others to sign a labor contract with the laborer, but the client must issue a power of attorney and affix the official seal of the employer to the labor contract.
The labor contract shall come into effect as of the date of signature and seal by both parties. If the parties have agreed on the time limit or conditions for entry into force, such agreement shall prevail.
Article 11. When employing workers or applying for jobs, if the workers are unwilling to sign labor contracts, the employing unit shall not employ them. If the employer refuses to sign a labor contract, the employee has the right to complain.
Article 12 A labor contract shall have the following clauses:
(a) the term of the labor contract;
(2) Work content and requirements;
(3) Labor protection and working conditions (the employing unit shall explain the hazards and protective measures of posts or toxic workplaces that may produce occupational diseases);
(four) labor remuneration and the way and time of payment;
(5) Social insurance and welfare benefits;
(six) working hours and rest and vacation;
(7) Labor discipline;
(8) Education and training;
(nine) the conditions for the termination and dissolution of the labor contract;
(10) Responsibility for violating the labor contract;
(1 1) dispute resolution method.
In addition to the contents specified in the preceding paragraph, the parties to a labor contract may also agree on other contents through consultation.
Article 13 The term of a labor contract can be divided into fixed term, non-fixed term and the term is to complete a certain work item or a certain workload. The term of the labor contract shall be determined by the employer and the employee through consultation.
If the employee has worked continuously in the same employer for 10 years or for more than 20 years, and both parties agree to extend the labor contract, if the employee proposes to conclude an open-ended labor contract, he shall conclude an open-ended labor contract.
When concluding an open-ended labor contract, the termination conditions must be clearly defined, and the statutory conditions for terminating the labor contract shall not be agreed as termination conditions.
Article 14 A probation period may be stipulated in a labor contract, and the longest probation period shall not exceed 6 months. The probation period is included in the labor contract. If the term of the labor contract is less than 6 months, the probation period shall not be agreed; If it is less than 6 months and less than 1 year, the longest probation period shall not exceed 1 month; If it has reached 1 year and is less than 3 years, the probation period shall not exceed 3 months at the longest.
The labor contract only stipulates the probation period. If the term of the labor contract is not agreed, the probation period is not established, and the probation period is the term of the labor contract.
Article 15 The parties to a labor contract may stipulate in the labor contract the duration and scope of keeping the business secrets of the employing unit, or sign a confidentiality agreement separately. After the trade secret enters the state of public knowledge, the contents agreed in the confidentiality clause and confidentiality agreement will automatically become invalid.
Where the laborer is required to perform the obligation of keeping the business secrets of the employing unit, the parties to the labor contract may stipulate in the labor contract or confidentiality agreement the advance notice period for the laborer to request the termination of the labor contract. However, the advance notice period shall not exceed 6 months. During this period, the employer can take corresponding decryption measures.
Article 16 Where a labor contract sets a penalty for breach of contract, it shall be limited to the following circumstances:
Violating the service term;
(2) Violating the agreement on keeping business secrets;
(3) Other circumstances in which liquidated damages can be set according to laws, regulations and rules.
The setting of the amount of breach of contract shall follow the principle of fairness and reasonableness.
Article 17 The working conditions and remuneration standards stipulated in the labor contracts signed by the employing units and individual workers under the collective contract system according to law shall not be lower than those stipulated in the collective contract.
Article 18 The following labor contracts are invalid:
(1) Labor contracts that violate laws, regulations and rules;
(2) Labor contracts concluded by means of fraud or coercion.
Invalid labor contracts are not legally binding from the date of conclusion. If part of the labor contract is confirmed to be invalid, the remaining part is still valid without affecting the validity of the remaining part.
The invalidity of a labor contract shall be confirmed by the labor dispute arbitration commission or the people's court.
If the laborer has paid the labor remuneration according to the invalid labor contract, the employer shall pay the corresponding labor remuneration and provide corresponding treatment.
Article 19 Where a labor contract has not been concluded, but the laborer has provided labor services according to the requirements of the employing unit, it shall be handled in the following circumstances:
(1) If the laborer requests to sign a labor contract, the employer shall not terminate the labor relationship on the grounds that there is no labor contract, but shall sign a supplementary labor contract with the laborer, which shall take effect as of the date when the laborer provides services;
(2) If the laborer is unwilling to sign a labor contract, the employer shall not continue to employ him, but shall pay the laborer the labor remuneration and the corresponding social insurance premium.
Article 20 If the employing unit that signed the labor contract is inconsistent with the unit that actually used the laborer, the employing unit may agree with the unit that actually used the laborer that the unit that actually used the laborer shall bear or partially bear the obligations stipulated in the contract. If the unit that actually uses the laborer fails to undertake the obligations as agreed, it shall be undertaken by the employing unit.
Chapter III Alteration, Dissolution and Termination of Labor Contracts
Twenty-first changes to the labor contract shall be agreed by the parties through consultation and in written form; If negotiation fails, the labor contract shall continue to be performed, except as otherwise provided by laws, regulations and rules.
Twenty-second the employer's mode of operation changes, the labor contract shall continue to be performed.
If the nature of the employer's assets changes, the newly established employer may negotiate with the employee to change the labor contract and pay the corresponding economic compensation according to the relevant laws; Continue to perform the original labor contract, the name of the employer in the original labor contract shall be changed accordingly.
Article 23 A labor contract may be dissolved after the parties reach an agreement through consultation.
Article 24 The employing unit may terminate the labor contract under any of the following circumstances:
(a) during the probation period, it is proved that it does not meet the employment conditions;
(2) Providing false certificates or certificates of labor relations related to employment;
(three) serious violation of labor discipline or the work system formulated and publicized by the employer according to law;
(four) serious dereliction of duty, corruption, causing heavy losses to the employer;
(5) Being investigated for criminal responsibility or reeducation through labor according to law;
(six) other circumstances stipulated by laws, regulations and rules.
Article 25 Under any of the following circumstances, the employer may terminate the labor contract, but it shall notify the employee in writing 30 days in advance:
(1) The employee suffers from illness or non-work-related injury, and after the medical treatment expires, he can't engage in the original work or other appropriate work arranged by the employer;
(two) the laborer is not competent for the job, and he is still not competent for the job after training or adjusting his post;
(3) The objective conditions on which the labor contract was concluded have changed greatly, which makes the original labor contract impossible to perform and the parties cannot reach an agreement on changing the labor contract through consultation.
If the employer terminates the labor contract in accordance with the provisions of the preceding paragraph without giving a written notice to the employee 30 days in advance, the termination shall be invalid, and the employer shall continue to perform the obligations agreed in the labor contract or compensate the employee for the losses.
Article 26 In any of the following circumstances, if the employing unit really needs to reduce its staff, it shall explain the situation to the trade union and all employees 30 days in advance, announce the staff reduction plan, listen to the opinions of the trade union and employees, and report to the labor and social security department before it can reduce its staff:
(a) on the verge of bankruptcy during the period of legal rectification;
(two) serious difficulties in production and operation;
(3) Other circumstances stipulated by laws, regulations and rules.
If an employing unit that has laid off its staff in accordance with the provisions of the preceding paragraph recruits staff within six months, it shall give priority to the laid-off staff of the unit.
Article 27 Under any of the following circumstances, the laborer has the right to notify the employing unit to terminate the labor contract at any time, and the employing unit shall pay the laborer his due labor remuneration and pay the corresponding social insurance premium:
(1) is in the probation period;
(two) the employer fails to provide working conditions as agreed in the labor contract;
(3) The employing unit forces labor by illegal means such as violence, coercion or restriction of personal freedom;
(4) Deducting or delaying the wages of workers without reason;
(5) Refusing to pay the laborer the remuneration for extending working hours;
(six) the seizure of the identity, education, qualifications and other documents of the workers;
(seven) pay the wages of workers below the local minimum wage standard or the wage standard agreed in the collective contract;
(eight) failing to pay social insurance premiums for workers according to law.
Article 28 Except in the circumstances specified in Article 27 of these Measures, a laborer who terminates a labor contract shall notify the employer in writing 30 days in advance or within the advance notice period stipulated in the labor contract.
If the economic losses caused by the laborer to the employer have not been dealt with, the labor contract shall not be terminated in accordance with the provisions of the preceding paragraph.
Twenty-ninth workers in any of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Article 25 and Article 26 of these measures:
(1) Suffering from occupational diseases or work-related injuries and being confirmed to be totally or partially incapacitated;
(2) Being sick or injured non-work-related, and within the prescribed medical treatment period;
(3) Female employees who meet the conditions of family planning during pregnancy, childbirth and lactation;
(four) has signed an open-ended labor contract;
(five) other circumstances stipulated by laws, regulations and rules.
Article 30 A labor contract shall be terminated under any of the following circumstances:
(a) the parties reached an agreement through consultation;
(2) The laborer is enlisted in the army or performs other legal obligations;
(three) the laborer is temporarily unable to perform the obligations of the labor contract, but it is still possible and possible to continue to perform;
(four) other circumstances stipulated by laws, regulations and rules.
After the circumstances specified in the preceding paragraph disappear, the labor contract shall continue to be performed, except as otherwise provided by laws, regulations and rules.
Article 31 A labor contract shall be terminated under any of the following circumstances:
(a) the expiration of the labor contract, the two sides will not renew;
(two) the termination conditions stipulated in the labor contract appear;
(3) Employees retire or resign;
(4) The laborer dies or is declared missing or dead by the people's court;
(five) the employer is dissolved, bankrupt or revoked;
(six) other circumstances stipulated by laws, regulations and rules.
Article 32 If a worker suffers from an occupational disease or a work-related injury and is confirmed to have lost all or most of his ability to work, the labor contract may not be terminated, but the parties may also terminate the labor contract if they reach an agreement on disability compensation (assistance) or security.
Article 33 When the term of the labor contract expires or the agreed termination conditions appear, if the laborer is under any of the following circumstances, and does not fall into the circumstances specified in Items (2), (3), (4) and (5) of Article 24 of these Measures, the labor contract shall be postponed to the following circumstances and disappear:
(1) Being sick or injured non-work-related and within the prescribed medical treatment period;
(2) Female employees who meet the conditions of family planning during pregnancy, childbirth and lactation;
(3) Other circumstances stipulated by laws, regulations and rules.
Article 34 The employing unit shall, 30 days before the expiration of the labor contract, notify the employee in writing to dissolve or renew the labor contract. If the labor contract is renewed, both parties shall go through the renewal procedures through consultation. The probation period shall not be agreed upon when renewing the labor contract.
When the term of the labor contract expires, if the employee still works in the unit because the employer has not gone through the formalities of dissolving the labor contract, it shall be regarded as the continuation of the original labor contract. The employer and the employee shall go through the formalities for renewing the labor contract in time. If both parties fail to reach an agreement on the renewal of the labor contract, the employer shall not continue to retain the workers, and if losses are caused to the workers, the employer shall compensate them.
Article 35 When a labor contract is dissolved or terminated, the employing unit shall issue a valid certificate of dissolution or termination of the labor contract; Handle the relevant procedures for dissolving or terminating the labor contract for the employee within 10 days from the date when the employee provides the necessary documents; And pay the corresponding economic compensation to the workers within 15 days after completing the relevant procedures.
Article 36 Where an employer terminates a labor contract in accordance with the provisions of Articles 23, 25 and 26 of these Measures, it shall pay economic compensation to the employee in accordance with the relevant provisions of the state and the province.
If the employee terminates the labor contract according to the provisions of Item (2), (3), (4), (5), (6), (7) and (8) of Article 27 of these Measures, the employer shall pay economic compensation to the employee in accordance with the relevant provisions of the state and the province; If losses are caused to laborers, the employing unit shall compensate them.
Article 37 If an employer terminates a labor contract and the trade union considers it inappropriate, it has the right to put forward opinions. If the employing unit violates laws, regulations, rules or labor contracts, the trade union has the right to request re-handling, and the employing unit shall re-handle and inform the trade union of the results. If a laborer applies for arbitration or brings a lawsuit because of a labor dispute, the trade union shall give support and help according to law.
Chapter IV Legal Liability
Thirty-eighth the employer fails to conclude a labor contract in accordance with the provisions of these measures, the labor security department shall order it to make corrections within a time limit. If no correction is made within the time limit, the employer shall be fined from 200 yuan to 400 yuan per person, but the total fine shall not exceed 30,000 yuan; If losses are caused to laborers, the employing unit shall be liable for compensation.
Thirty-ninth the employer has one of the following circumstances, the labor and social security department shall order it to make corrections within a time limit; If losses are caused to laborers, the employing unit shall be liable for compensation:
(1) The labor contract is invalid or partially invalid due to the employer's reasons;
(two) in violation of the provisions of these measures or the labor contract, the labor contract is dissolved or terminated with the employee;
(3) Failing to go through the formalities of dissolving or terminating the labor contract in accordance with the provisions of these Measures.
Article 40 If an employing unit recruits workers whose labor contracts have not been terminated, thus causing losses to the original employing unit, the employing unit and the workers shall be jointly and severally liable for compensation to the original employing unit according to law. The employer may be exempted from joint and several liability for compensation if the employee provides false certificates and causes improper employment.
Forty-first after the termination of the labor contract, if the employer fails to pay the economic compensation according to the regulations, the labor security department shall order it to pay it in full within a time limit and may order it to pay 50% of the unpaid compensation.
Forty-second employers in violation of the provisions of these measures, not for the labor contract filing procedures, given a warning by the labor and social security departments, ordered to make corrections within a time limit; If no correction is made within the time limit, a fine ranging from 500 yuan to 2000 yuan may be imposed.
Article 43 If a laborer terminates the labor contract in violation of the conditions stipulated in these Measures, or violates the matters agreed in the labor contract, thus causing actual economic losses to the employing unit, he shall be liable for compensation according to law. The scope of liability is limited to the following situations:
(a) The expenses directly paid by the employer for employing workers;
(two) the training fees paid by the employer for the workers;
(3) Direct economic losses caused to production, operation and work;
(4) Other compensation expenses agreed in the labor contract.
Article 44 Where a labor dispute arises between the parties to a labor contract, it shall be handled in accordance with the relevant provisions on labor disputes.
Forty-fifth labor and social security departments and their staff have one of the following acts, the relevant authorities shall give administrative sanctions or disciplinary sanctions to the directly responsible person in charge and the directly responsible personnel:
(a) the illegal exercise of supervision and inspection rights;
(two) the illegal implementation of administrative punishment;
(3) Failing to accept the complaints and reports of workers according to law, or failing to investigate and deal with them in time according to law after acceptance;
(four) failing to investigate and deal with the acts of enterprises in violation of these measures according to law;
(five) other acts that should be given administrative or disciplinary sanctions according to law.
Chapter V Supplementary Provisions
Article 46 The simple labor contract measures for labor service, part-time employment and community service employment shall be formulated by the provincial labor and social security department with reference to these measures and submitted to the provincial people's government for the record.
Forty-seventh state organs, institutions, social organizations, private non-enterprise units and their personnel who have established employment contracts with them shall be implemented by the personnel administrative department of the people's government at or above the county level with reference to these measures. Where laws, regulations and rules provide otherwise, such provisions shall prevail.
Article 48 These Measures shall come into force on June 6+1October 6+1October 6, 2003. The labor contract that has been performed before the implementation of these measures, if the laws, regulations and rules clearly stipulate the obligations of the parties to the labor contract, shall continue to be performed after the implementation of these measures; Where there are no explicit provisions in laws, regulations and rules at the time of conclusion, these Measures shall prevail.