1000 Business Lessons Every Businessman Must Know

Chapter 54 Signing and Terminating Labor Contracts: Taking the Law as the Criteria

443. How to conclude labor contracts with employees

Article 16 of the "Labor Law" stipulates: "A labor contract is an agreement between a laborer and an employer to establish a labor relationship and clarify the rights and obligations of both parties. To establish a labor relationship, a labor contract should be concluded." Enterprises must follow consultations when signing contracts with laborers. The principles of consistency and equality and voluntariness shall not violate the provisions of laws and administrative regulations.

According to the provisions of Article 19 of my country's "Labor Law", the labor contract should have the following clauses:

(1) The term of the labor contract;
(2) Job content;
(3) Labor protection and working conditions;

(4) labor remuneration;
(5) Labor discipline;
(6) Termination conditions of the labor contract;
(7) Liability for breach of labor contract.

When concluding a labor contract, it should be noted that a labor contract lacking any of the above-mentioned mandatory clauses cannot be established.Some labor contracts, due to their particularity, are specifically required in the legislation to stipulate certain special clauses in addition to the general statutory mandatory clauses.Enterprises can also negotiate with workers and agree on terms that are suitable for specific working conditions and that are not illegal.

When using the standardized labor contract text uniformly formulated by the administrative department, the enterprise and the laborer can also make partial amendments, additions or deletions on the basis of consultation, and the contract will be established after both parties sign or seal.

444. Circumstances where the labor contract is invalid

Labor contracts that violate laws and administrative regulations, and labor contracts that are concluded by means of fraud and threats are invalid labor contracts.

An invalid labor contract is not legally binding from the moment it is concluded.

The invalidity of a labor contract shall be confirmed by the labor dispute arbitration committee or the people's court.

445. Modification of labor contract

Due to changes in circumstances during the performance of the labor contract, some clauses of the labor contract may be amended or supplemented upon consensus of both parties.The unaltered part of the labor contract remains valid.

Changes to labor contracts are mainly reflected in four aspects:

(1) Increase or decrease in production or work tasks;
(2) The extension or shortening of the labor contract period;
(3) Changes or changes in the type of work or position of the worker;

(4) Increase or decrease of labor remuneration paid to laborers.

446. Termination of employment contract

When the labor contract expires or the labor contract termination conditions agreed by the parties appear, the labor contract will be terminated immediately. The Labor Law stipulates two situations for the termination of a labor contract:
(1) When the term of the labor contract expires, the labor contract will be terminated.This is mainly for labor contracts with a fixed term and labor contracts with a term to complete certain work;
(2) When the conditions for the termination of the contract agreed by the parties occur, the labor contract is also terminated.This termination of the labor contract is an agreed termination.This situation applies not only to labor contracts with a fixed term and a term to complete certain work, but also to labor contracts without a fixed term. , the term of the labor contract shall be automatically extended until the expiration of the medical period, pregnancy period, childbirth period and breast-feeding period.

The termination of a labor contract means that the labor rights and obligations determined by the parties to the labor contract have come to an end, and the employer shall go through the relevant procedures for terminating the labor contract in accordance with the law.

447. Renewal and termination of labor contracts
When the term of the labor contract expires, the labor contract can be renewed upon mutual agreement.

The termination of a labor contract refers to a legal act in which one party or both parties to the labor contract terminate the labor relationship in advance due to some reason after the labor contract is signed but before it is fully performed.

There are two types of rescission: statutory rescission and agreed rescission.According to the provisions of the "Labor Law", a labor contract can be terminated either unilaterally according to law, or through negotiation between the two parties.If the employer terminates the labor contract in accordance with the provisions of Articles 24, 26, and 27 of the Labor Law, it shall pay the laborer economic compensation in accordance with the Labor Law and the Ministry of Labor's "Economic Compensation Measures for Violations and Termination of Labor Contracts".

448. Conditions for unilateral termination of labor contracts
For staff who do not meet the requirements of the enterprise, the employer has the right to terminate the labor contract.Regarding the reasons for the employer to unilaterally terminate the labor contract, the "Labor Law" stipulates three situations:

1. The employer can directly notify the employee to terminate the labor contract at any time without performing any legal procedures and obligations. Article 25 of the "Labor Law" stipulates that the employer may terminate the labor contract if the employee falls under any of the following circumstances:

(1) During the probation period, it is proved that he does not meet the recruitment requirements;
(2) Seriously violating labor discipline or the rules and regulations of the employer;

(3) Serious dereliction of duty, malpractice for personal gain, causing significant damage to the interests of the employer;
(4) Being investigated for criminal responsibility according to law.

2. The employer has the right to terminate the labor contract, but it must perform statutory procedures and undertake statutory obligations. Article 26 of the "Labor Law" stipulates that under any of the following circumstances, the employer may terminate the labor contract, but it shall notify the employee in writing [-] days in advance:
(1) The laborer is injured due to illness or non-work-related injury, and after the expiration of the medical treatment period, he is unable to engage in the original job or another job arranged by the employer;
(2) The laborer is incompetent for the job, and is still incompetent for the job after training or job adjustment;

(3) When the labor contract is concluded, the objective circumstances on which it is based have changed significantly, making the original labor contract impossible to perform, and the parties cannot reach an agreement on the modification of the labor contract through negotiation.

3. If the employer cannot perform the original labor contract due to its own reasons, it can terminate the labor contract after fulfilling the statutory procedures and obligations. Article 27 of the "Labor Law" stipulates: "If the employer is on the verge of bankruptcy and undergoing statutory rectification or serious difficulties in production and operation, and it is really necessary to reduce personnel, it shall explain the situation to the trade union or all employees [-] days in advance, and listen to the opinions of the trade union or employees. , After reporting to the labor administrative department, personnel may be reduced. Employers who reduce personnel in accordance with the provisions of this article and recruit personnel within six months shall give priority to hiring the retrenched personnel."

It is worth mentioning that, according to the provisions of Article 28 of the "Labor Law", if the employer terminates the labor contract under the second and third circumstances above, it shall also give economic compensation to the laborer in accordance with the relevant state regulations.

Under the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Articles 26 and 27 of the Labor Law, and the laborer still has the right to enjoy social insurance benefits in accordance with the provisions of the original labor contract:

(1) Suffering from occupational diseases or work-related injuries and confirmed to have lost or partially lost the ability to work;

(2) Illness or injury, within the stipulated medical treatment period;
(3) Female employees who are pregnant, giving birth, or breastfeeding;

(4) Other circumstances stipulated by laws and administrative regulations.When the above-mentioned circumstances occur when the employer is on the verge of bankruptcy, is declared by the people's court to enter the period of statutory rectification, or has serious difficulties in production and operation, and meets the standards for enterprises in serious difficulties stipulated by the local government, and it is really necessary to reduce personnel, the employer shall not reduce the above-mentioned personnel. .

Restricting employers from rescinding the labor contract because the employee has objective reasons (including layoffs) that can terminate the contract. It does not apply when the employee has subjective reasons, such as failure to meet the employment conditions, serious fault, violation of According to the criminal law, the employer can terminate the contract.

Attachment: labor contract template
Company (unit) (hereinafter referred to as Party A)
(hereinafter referred to as Party B)
In accordance with the relevant laws and regulations of the country, this contract is concluded on the matter of employment.

Article [-] Probationary Period and Recruitment

([-]) Party A employs Party B as an employee in accordance with the terms of the contract, and Party B's work department is the position, and the type of work is . Party B shall go through a probationary period of three to six months. Seven days notice to the other party or seven days' actual salary as compensation.

([-]) After the probationary period expires and there is no objection from both parties, Party B will become a formal contract laborer of Party A, and Party A will confirm in writing.

([-]) If Party B is formally hired after passing the probationary period, the probationary period shall be included in the validity period of the contract.

Article [-] Wages and other subsidies and bonuses
([-]) Party A implements the company's graded salary system in accordance with the relevant national regulations and the company's operating conditions, and determines the corresponding salary standard according to Party B's position and other conditions, and pays in the form of bank transfer on a monthly basis.

([-]) Party A increases wages according to the profitability and Party B's behavior and work performance. If Party B fails to meet the requirements specified by Party A, Party B's wages will not be raised.

([-]) Party A (company executives) and the personnel department, under the following circumstances, Party A will give Party B honors or material rewards, such as exemplary compliance with the company's rules and regulations, outstanding contributions or material rewards in production and work, technological innovation , management improvement,
Party B can also be promoted in terms of salary and job level due to outstanding contributions.

([-]) Party A sets up year-end bonuses based on the profit of the company, and can pay bonuses based on employees' labor performance and years of service in the unit.

([-]) Party A provides allowances and subsidies to Party B according to the relevant government regulations and the status of the enterprise.

([-]) In addition to the subsidies specified in laws, regulations and rules, Party A will no longer be obliged to provide other subsidies to Party B.

Article [-] Working hours and public holidays
(8) Party B's working hours are 44 hours a day (excluding meal time), five and a half days a week or no more than [-] hours a week, and no rest time is arranged on each working day except for meal time.

([-]) Party B has the right to enjoy legal holidays and paid holidays such as marriage leave and funeral leave.If Party A requires Party B to work on statutory holidays, after obtaining Party B's consent, Party A must arrange for Party B to take turns to rest at the corresponding time, or pay Party B overtime pay according to national regulations.

([-]) Party B becomes a full-time employee, and after working continuously in the company for half a year, he can enjoy a [-]-day paid annual leave in proportion to the position he assumes.

([-]) When Party B is sick, the employees who have passed the probationary period can enjoy one day of paid sick leave per month after being certified by the doctor and hospital approved by Party A, and the treatment of the sick leave salary exceeding the paid sick leave shall be implemented in accordance with the relevant regulations of the government and the unit .

([-]) Party A can adjust and change the working hours according to the needs of production and operation, including changing the start and end time of the daily work. In the case of taking care of the employees to have reasonable rest time, the daily working hours can be changed inconsistently, or require Employees come to work on statutory holidays and rest days.Party B shall actively support and obey Party A's arrangements without special reasons, but Party A shall strictly control overtime

add a bit.

Article [-] Employee Education

During the tenure of Party B, Party A must often educate Party B on professional ethics, business technology, production safety, various rules and regulations, and social legal system, and Party B should actively accept education in this area.

Article [-] Working arrangements and conditions
([-]) Party A has the right to reasonably arrange and adjust Party B's work according to production and work needs and Party B's ability. Party B shall obey Party A's management and arrangement, and complete the work assigned by Party A within the specified working time with quality and quantity. work tasks.

([-]) Party A must provide Party B with a safe and hygienic working environment that meets national requirements, otherwise Party B has the right to refuse to work or terminate the contract.

Article [-] Labor Protection

Party A shall provide Party B with labor protection articles and health food according to the requirements of production and work in accordance with national regulations.Provide corresponding protection for female employees during menstruation, pregnancy, childbirth and breastfeeding, and the specific measures shall be implemented in accordance with relevant state regulations.

Article [-] Labor Insurance and Welfare Treatment
([-]) Party A shall pay medical expenses, sick leave wages, endowment insurance expenses and work-related injury insurance expenses for Party B in accordance with the provisions of the National Labor Insurance Regulations.

([-]) Party A shall provide Party B with dormitory and working meals (times per day) according to the regulations of the unit.

Article [-] Termination of Contract

([-]) Party A may terminate the labor contract if the following conditions are met:
(1) Due to changes in business conditions of Party A, the redundant employees cannot be changed to other types of work.

(2) If Party B suffers from illness or non-work-related injury, after the prescribed medical treatment period expires, Party B cannot engage in the original job, nor can he change to other types of work.

(3) If Party B seriously violates the enterprise's labor discipline and rules and regulations, and causes certain consequences, and should be dismissed according to the relevant regulations and regulations of the enterprise, Party A has the right to terminate Party B's labor contract at any time.

(4) If Party B is detained, reeducated through labor and sentenced for violating state regulations, Party A will be dismissed and the labor contract will be terminated accordingly.

([-]) Party B may terminate the labor contract if the following conditions are met.

(1) It has been confirmed by the relevant state departments that the labor safety and sanitary conditions are poor, which seriously endangers the health of Party B.

(2) Party A fails to perform the labor contract or violates national policies and regulations, and infringes the legitimate interests of Party B.

(3) Party A does not pay Party B labor remuneration according to regulations.

([-]) Party A has to terminate the labor contract under the following circumstances

(1) Party B is sick or injured due to work, and is within the prescribed medical treatment period.

(2) Party B suffers from work-related injuries or occupational diseases and is undergoing treatment.

(3) The female employee is pregnant, giving birth or breastfeeding.

([-]) If Party B is injured or suffers from occupational diseases due to work, or is partially incapacitated by medical treatment after being confirmed by relevant government departments, the enterprise shall make proper arrangements.

([-]) If either party terminates the labor contract, under normal circumstances, the other party must be notified one month in advance, or compensated with one month's salary, and the procedure for rescission of the contract shall be handled in accordance with the relevant regulations of the enterprise.

([-]) During the contract period, if Party B has legitimate reasons and does not want to continue working in the company, he may submit his resignation, but he must notify Party A in writing one month in advance, and it will take effect after Party A's approval.If the resigned employee is trained by the enterprise, after the training period expires, if the service period is not over the contract period, Party A shall be compensated for a certain amount of training expenses.If Party A resigns without the consent of Party A, Party A has the right to ask Party B to return to work through the government labor department and compensate Party A for the economic losses caused thereby.

Article [-] Labor Discipline

([-]) Party B shall abide by the various regulations of the state, the "Employee Handbook" of the enterprise and the various rules and regulations of the unit.

([-]) If Party B violates the criminal law, is subject to legal sanctions or violates the "Employee Handbook" and other rules and regulations stipulated by Party A, Party A has the right to give Party B corresponding disciplinary sanctions, up to expulsion, in accordance with the "Employee Handbook" and other regulations. If Party B violates the "Employee Handbook" and other rules and regulations, causing damage to the interests of the company, such as damage to the company's reputation and property damage, Party A may impose a one-time fine according to the severity.

([-]) If Party B violates the contract, takes bribes, seriously neglects duty, or has immoral or rude behavior, which causes or foretells that it will cause serious damage to the personal and property interests of others, and Party B violates the criminal law and is punished by law. The right to be dismissed immediately, and no "contract compensation" and "contract performance payment" will be given.The loss caused by Party B's corruption or bribery or damage to the personal and property interests of others.Party B shall fully bear the liability for compensation.

([-]) Party B shall not disclose the company's commercial confidential information to anyone during and after the contract period.Party B is not allowed to work part-time in companies or organizations that operate similarly to this company or business groups that have business relations with this company during his tenure.When the contract of Party B is terminated or the company leaves for other reasons, it shall return all documents and materials related to operation to the department supervisor, including correspondence, memorandum, list of customers, diagrams and training materials, etc.

Article [-] Contract Implementation and Approval

([-]) This contract has been discussed and formulated, submitted for approval, and written in words. The content shall be in Chinese, and the right to interpret the contract belongs to the Human Resources Department of the company.

([-]) The unit's "Employee Handbook", "Employee Violation and Warning Notice" and other economic discipline regulations are all annexes to the contract and are an integral part of the contract.

([-]) Once the contract has been appraised, both parties A and B must strictly abide by it, and neither party may unilaterally modify the content of the contract. If there is any unfinished matter or conflicts with the relevant government regulations, it shall be dealt with in accordance with the relevant government regulations.

([-]) This contract will come into effect on the date of appraisal, and the validity period will be two months before the expiry of the contract, if both parties have no objection, the contract will be extended for another year.

([-]) This contract is made in duplicate, and each party holds one copy, which shall be supervised and executed by Party A's higher-level competent department and the national labor management department.

Party A (signature) Party B (signature)
Year
(End of this chapter)