Service Term means the term the Employee promises to work for the Employer in case the Employee receives special treatment from the Employer.
If the Employer provides training for the Employee at its own cost, the Employer can enter into agreement with the Employee and have a service term in such agreement.
In the event the Employee violates the service term, he shall pay penalty to the Employer, which shall not be more than the training expense. Furthermore, the penalty the Employer requires the Employee to pay shall not exceed the part of training expense which is the rest of the training expense according to the term left.
Tuesday, July 31, 2007
Sunday, July 29, 2007
Probation Period
In the new Employment Law, the probation period has direct link with the employment term. In case the employment term is more than 3 months but less than one year, then the probation period shall be no more than 1 month; If the employment term is more than one year (including one year) but less than three years, the employment term shall be no more than 2 months; if the employment term is more than three years (including three years) or the employment contract is an open term contract, then the probation period shall be no more than 6 months.
The same Employer can only be allowed to have probation period with the same Employee for one time.
No probation period is allowed if the contract is a task completion-based contract or the employment term is less than three months.
The probation period shall be included into the employment term. That is to say, if the employment term is 6 months and the probation period is 1 month, then the 1 month shall be part of the 6 months.
With regards the salary for probation period, according to the new Employment Law, the Employee’s salary for probation period shall be no less than the minimum salary for the same position in the company or no less than 80% of the salary as agreed in the employment contract.
During the probation period, the Employer is not allowed to terminate the contract except:
a) The Employee is proven not up to the requirements for recruitment during the probation period;
b) The Employee seriously violates the Employer’s disciplines or the rules;
c) The Employee causes great losses to the Employer due to serious dereliction of duty or engagement in malpractice for selfish ends;
d) The Employee meanwhile enters into employment relationship with other employer(s), which brings serious impact to the task which the Employee needs to complete for the Employer, or for such situation, the Employer has pointed it out but the Employee refuses to rectify;
e) The employment contract is concluded or modified by one party against the other party’s true intentions through the use of fraud or coercion or exploitation of the other party’s unfavorable position, which makes the contract null and void;
f) The Employee is investigated for criminal responsibility;
g) The Employee is unable to take up his original work or other work assigned by the Employer after expiry of his medical treatment term for illness or non work-related injury;
h) The Employee is unqualified for his work and remains unqualified even after receiving training or an adjustment of job position.
In case the Employer terminates the contract during the probation period, it shall explain the reason to the Employee.
The same Employer can only be allowed to have probation period with the same Employee for one time.
No probation period is allowed if the contract is a task completion-based contract or the employment term is less than three months.
The probation period shall be included into the employment term. That is to say, if the employment term is 6 months and the probation period is 1 month, then the 1 month shall be part of the 6 months.
With regards the salary for probation period, according to the new Employment Law, the Employee’s salary for probation period shall be no less than the minimum salary for the same position in the company or no less than 80% of the salary as agreed in the employment contract.
During the probation period, the Employer is not allowed to terminate the contract except:
a) The Employee is proven not up to the requirements for recruitment during the probation period;
b) The Employee seriously violates the Employer’s disciplines or the rules;
c) The Employee causes great losses to the Employer due to serious dereliction of duty or engagement in malpractice for selfish ends;
d) The Employee meanwhile enters into employment relationship with other employer(s), which brings serious impact to the task which the Employee needs to complete for the Employer, or for such situation, the Employer has pointed it out but the Employee refuses to rectify;
e) The employment contract is concluded or modified by one party against the other party’s true intentions through the use of fraud or coercion or exploitation of the other party’s unfavorable position, which makes the contract null and void;
f) The Employee is investigated for criminal responsibility;
g) The Employee is unable to take up his original work or other work assigned by the Employer after expiry of his medical treatment term for illness or non work-related injury;
h) The Employee is unqualified for his work and remains unqualified even after receiving training or an adjustment of job position.
In case the Employer terminates the contract during the probation period, it shall explain the reason to the Employee.
Friday, July 27, 2007
The Employment Term
According to the new Employment Law, there are fixed-term employment contract, open term employment contract and task completion-based employment contract.
Fixed-term employment contract means the contract has an expiry date. The fixed-term employment contract can be concluded by the Employer and the Employee on the basis of consultation.
Open-term employment contract means the contract has no definite expiry date.
Open-term employment contract can be reached by the Employer and Employee on the basis of consultation. However, in the following situations, if the Employee puts forward or agree to renew or conclude the employment contract, an open-term employment contract shall be concluded except the Employee proposes to conclude a fixed-term contract:-
1. The Employee has been working for no less than 10 years for the Employer;
2. When the Employer adopts the employment contract system for the first time or state-owned enterprise is reorganized and reenters into employment contract with the Employee, the Employee has been working for no less than 10 years for the Employer and there is less than 10 years before he/she retires;
3. The fixed-term employment contract has been concluded for consecutive two times, and no following situations exist when reentering into the contract:-
a) The Employee is proven not up to the requirements for recruitment during the probation period;
b) The Employee seriously violates the Employer’s disciplines or the rules;
c) The Employee causes great losses to the Employer due to serious dereliction of duty or engagement in malpractice for selfish ends;
d) The Employee meanwhile enters into employment relationship with other employer(s), which brings serious impact to the task which the Employee needs to complete for the Employer, or for such situation, the Employer has pointed it out but the Employee refuses to rectify;
e) The employment contract is concluded or modified by one party against the other party’s true intentions through the use of fraud or coercion or exploitation of the other party’s unfavorable position, which makes the contract null and void;
f) The Employee is investigated for criminal responsibility;
g) The Employee is unable to take up his original work or other work assigned by the Employer after expiry of his medical treatment term for illness or non work-related injury;
h) The Employee is unqualified for his work and remains unqualified even after receiving training or an adjustment of job position.
If the Employer does not sign written employment contract with the Employee and such condition has last for over one month starting from the date when the Employee carries out the work but less than one year, the Employer shall pay double salaries each month to the Employee.
In the event the Employer does not sign written employment contract with the Employee and such condition has last for one year, the Employer is deemed to have entered into open term employment contract with the Employee.
If the Employer violates the law and refuses to sign open term employment contract with the Employee, the Employer shall pay double salaries to the Employee from the date when the open term employment contract shall be signed.
Task completion-based employment contract means the contract comes to an end when the task is completed.
Task completion-based employment contract can be concluded between the Employer and the Employee on the basis of consultation.
Fixed-term employment contract means the contract has an expiry date. The fixed-term employment contract can be concluded by the Employer and the Employee on the basis of consultation.
Open-term employment contract means the contract has no definite expiry date.
Open-term employment contract can be reached by the Employer and Employee on the basis of consultation. However, in the following situations, if the Employee puts forward or agree to renew or conclude the employment contract, an open-term employment contract shall be concluded except the Employee proposes to conclude a fixed-term contract:-
1. The Employee has been working for no less than 10 years for the Employer;
2. When the Employer adopts the employment contract system for the first time or state-owned enterprise is reorganized and reenters into employment contract with the Employee, the Employee has been working for no less than 10 years for the Employer and there is less than 10 years before he/she retires;
3. The fixed-term employment contract has been concluded for consecutive two times, and no following situations exist when reentering into the contract:-
a) The Employee is proven not up to the requirements for recruitment during the probation period;
b) The Employee seriously violates the Employer’s disciplines or the rules;
c) The Employee causes great losses to the Employer due to serious dereliction of duty or engagement in malpractice for selfish ends;
d) The Employee meanwhile enters into employment relationship with other employer(s), which brings serious impact to the task which the Employee needs to complete for the Employer, or for such situation, the Employer has pointed it out but the Employee refuses to rectify;
e) The employment contract is concluded or modified by one party against the other party’s true intentions through the use of fraud or coercion or exploitation of the other party’s unfavorable position, which makes the contract null and void;
f) The Employee is investigated for criminal responsibility;
g) The Employee is unable to take up his original work or other work assigned by the Employer after expiry of his medical treatment term for illness or non work-related injury;
h) The Employee is unqualified for his work and remains unqualified even after receiving training or an adjustment of job position.
If the Employer does not sign written employment contract with the Employee and such condition has last for over one month starting from the date when the Employee carries out the work but less than one year, the Employer shall pay double salaries each month to the Employee.
In the event the Employer does not sign written employment contract with the Employee and such condition has last for one year, the Employer is deemed to have entered into open term employment contract with the Employee.
If the Employer violates the law and refuses to sign open term employment contract with the Employee, the Employer shall pay double salaries to the Employee from the date when the open term employment contract shall be signed.
Task completion-based employment contract means the contract comes to an end when the task is completed.
Task completion-based employment contract can be concluded between the Employer and the Employee on the basis of consultation.
Wednesday, July 25, 2007
The rights that Employees enjoy when concluding an employment contract
During the course of concluding employment contract, the Employees have the right of knowing . The Employer shall faithfully inform the Employees of the job content, job condition, working address, work-related danger, safety production condition, remuneration and other issues that the Employees want to learn about.
The employer is not allowed to detain the Employees ID or other certificates, or ask for guarantee from the Employee as a means to keep the employment.
Written employment contract shall be concluded. In case the employment relationship has been set up but no written employment contract was ever signed, the contract shall be signed within one month upon establishment of employment relationship. If the contract is signed before the Employee carries out the work as assigned by the Employer, the employment relationship shall be deemed to be established when the work is carried out.
The employer is not allowed to detain the Employees ID or other certificates, or ask for guarantee from the Employee as a means to keep the employment.
Written employment contract shall be concluded. In case the employment relationship has been set up but no written employment contract was ever signed, the contract shall be signed within one month upon establishment of employment relationship. If the contract is signed before the Employee carries out the work as assigned by the Employer, the employment relationship shall be deemed to be established when the work is carried out.
Wednesday, July 4, 2007
China Promulgated the new Employment Contract
The new Employment Contract law was passed by the 28th Secession of Standing Committee of NPC on June 29, 2007. The new Law increases penality to the employer who violates the Law and refuses to sign written employment contract with the employee. Also when disputes arise, the old procedure i.e. arbitration first and then litigation, is expected to be modified. This new Law will become effective on January 1, 2008.
Double salary shall be paid in case no written employment contract is signed
According to the Law, the employer shall sign a written employment contract with the employee. If no such contract is signed during the term starting from the next month of employment to expiry of one year of employment, the employer shall pay double monthly salary to the employer during such term; In case no written contract is signed after expiry of one year, besides the double monthly salary to be paid, it is deemed the employer has entered into non-fixed term contract with the employee.
The Probation term shall be no more than six months
With regards the probation term, if the employment term is over three months but no more than one year, the probation term shall be no more than one month; if the employment term is over one year but no more than three years, the probation term shall be no more than two months; if the employment term is over three years or the contract is a non-fixed term contract, the probation term shall be no more than six months.
In addition, the employee's salary during the probation term shall be no less than 80 % of the salary as agreed in the contract or no less than the minimum salary for the same position in the company.
Double salary shall be paid in case no written employment contract is signed
According to the Law, the employer shall sign a written employment contract with the employee. If no such contract is signed during the term starting from the next month of employment to expiry of one year of employment, the employer shall pay double monthly salary to the employer during such term; In case no written contract is signed after expiry of one year, besides the double monthly salary to be paid, it is deemed the employer has entered into non-fixed term contract with the employee.
The Probation term shall be no more than six months
With regards the probation term, if the employment term is over three months but no more than one year, the probation term shall be no more than one month; if the employment term is over one year but no more than three years, the probation term shall be no more than two months; if the employment term is over three years or the contract is a non-fixed term contract, the probation term shall be no more than six months.
In addition, the employee's salary during the probation term shall be no less than 80 % of the salary as agreed in the contract or no less than the minimum salary for the same position in the company.
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