No. 22
The Interim Provisions on Labor Dispatch, which was deliberated and adopted at the 21st ministerial meeting of the Ministry of Human Resources and Social Security on December 20, 2013, are hereby promulgated and shall come into force as of March 1, 2014.
Minister Yin Weimin
January 24, 2014
Chapter I General Provisions
Article 1 These Provisions are formulated in accordance with the Labor Contract Law of the People's Republic of China (hereinafter referred to as the Labor Contract Law), the Regulations for the Implementation of the Labor Contract Law of the People's Republic of China (hereinafter referred to as the Regulations for the Implementation of the Labor Contract Law) and other laws and administrative regulations in order to regulate labor dispatch, safeguard the legitimate rights and interests of workers, and promote harmonious and stable labor relations.
Article 2 These Provisions shall apply to labor dispatch enterprises (hereinafter referred to as "employing units") that operate labor dispatch business and employ dispatched workers.
The use of dispatched workers by legally established accounting firms, law firms and other partnership organizations and foundations, as well as private non enterprise units and other organizations shall be subject to these Provisions.
Chapter II Employment Scope and Proportion
Article 3 The employing unit can only use dispatched workers in temporary, auxiliary or alternative jobs.
The temporary job mentioned in the preceding paragraph refers to the job with a duration of no more than 6 months; Auxiliary jobs refer to non main business jobs that provide services for main business jobs; Alternative jobs refer to the jobs that can be replaced by other workers within a certain period of time when the workers of the employing unit cannot work due to off job study, vacation and other reasons.
When the employing unit decides to use the auxiliary positions of dispatched workers, it shall discuss with the workers' congress or all the workers, put forward plans and opinions, negotiate with the trade union or the workers' representatives on an equal footing, and publicize them in the employing unit.
Article 4 The employing unit shall strictly control the number of dispatched workers, and the number of dispatched workers used shall not exceed 10% of the total number of workers.
The total number of workers referred to in the preceding paragraph refers to the sum of the number of labor contracts concluded by the employing unit and the number of dispatched workers used.
The employing unit that calculates the labor dispatch employment ratio refers to the employing unit that can conclude labor contracts with workers in accordance with the Labor Contract Law and the implementation regulations of the Labor Contract Law.
Chapter III Conclusion and Performance of Labor Contracts and Labor Dispatch Agreements
Article 5 A labor dispatch unit shall conclude a fixed term written labor contract with the dispatched workers for more than 2 years in accordance with the law.
Article 6 A labor dispatch unit may agree on a probation period with the dispatched workers according to law. The labor dispatch unit and the same dispatched worker can only agree on one probation period.
Article 7 A labor dispatch agreement shall contain the following contents:
（1） Name and nature of the dispatched job;
（2） Work location;
（3） Number and duration of dispatched personnel;
（4） The amount of labor remuneration and the method of payment determined in accordance with the principle of equal pay for equal work;
（5） The amount and payment method of social insurance premiums;
（6） Working hours, rest and vacation matters;
（7） Relevant treatment of dispatched workers during work injury, childbirth or illness;
（8） Labor safety and health and training matters;
（9） Economic compensation and other expenses;
（10） Term of labor dispatch agreement;
（11） Payment method and standard of labor dispatch service fee;
（12） Liability for breach of labor dispatch agreement;
（13） Other matters required by laws, regulations and rules to be included in the labor dispatch agreement.
Article 8 Labor dispatch units shall perform the following obligations to dispatched workers:
（1） Inform the dispatched workers of the matters specified in Article 8 of the Labor Contract Law, the rules and regulations to be observed and the contents of the labor dispatch agreement;
（2） Establish a training system, and conduct induction knowledge and safety education and training for dispatched workers;
（3） Pay labor remuneration and relevant treatment to dispatched workers in accordance with national regulations and the labor dispatch agreement;
（4） Pay social insurance premiums for dispatched workers and handle social insurance related procedures in accordance with national regulations and labor dispatch agreements;
（5） Urge the employing unit to provide labor protection and labor safety and health conditions for the dispatched workers according to law;
（6） Issue the certificate of cancellation or termination of the labor contract according to law;
（7） Assist in handling disputes between dispatched workers and the employing unit;
（8） Other matters stipulated by laws, regulations and rules.
Article 9 The employing unit shall, in accordance with the provisions of Article 62 of the Labor Contract Law, provide the dispatched workers with post related benefits, and shall not discriminate against the dispatched workers.
Article 10 If the dispatched workers are injured in an accident due to work in the employing unit, the labor dispatch unit shall apply for identification of work-related injuries according to law, and the employing unit shall assist in the investigation and verification of identification of work-related injuries. The labor dispatching unit shall bear the liability for work-related injury insurance, but may agree on the compensation method with the employing unit.
When the dispatched workers apply for occupational disease diagnosis and appraisal, the employing unit shall be responsible for handling the matters of occupational disease diagnosis and appraisal, and truthfully provide the workers' occupational history, occupational hazard exposure history, workplace occupational disease inductive factor test results and other materials required for occupational disease diagnosis and appraisal. The labor dispatch unit shall provide the dispatched workers' occupational disease diagnosis Other materials required for identification.
Article 11 If the term of validity of the administrative license of the labor dispatch unit has not been extended or the Labor Dispatch Business License has been revoked or revoked, the labor contract that has been concluded with the dispatched workers according to law shall be performed until the expiration of the term. Both parties may terminate the labor contract upon consensus.
Article 12 Under any of the following circumstances, the employing unit may return the dispatched workers to the labor dispatching unit:
（1） The employing unit is under the circumstances specified in Item 3 of Article 40 and Article 41 of the Labor Contract Law;
（2） The employing unit has been declared bankrupt according to law, its business license has been revoked, it has been ordered to close down, it has been revoked, it has decided to dissolve ahead of schedule, or it will not continue to operate at the expiration of its business term;
（3） The labor dispatch agreement expires and terminates.
During the period when the dispatched workers are not working after returning, the labor dispatch unit shall pay them monthly remuneration at a rate not lower than the minimum wage standard stipulated by the local people's government.
Article 13 If the dispatched workers are under the circumstances specified in Article 42 of the Labor Contract Law, the employing unit shall not return the dispatched workers to the labor dispatch unit in accordance with Item 1 of Paragraph 1 of Article 12 of these Regulations before the expiration of the dispatch period; If the dispatch period expires, it shall be continued until the corresponding situation disappears.
Chapter IV Cancellation and Termination of Labor Contracts
Article 14 The dispatched worker may terminate the labor contract by notifying the labor dispatch unit in writing 30 days in advance. The dispatched worker may terminate the labor contract by notifying the labor dispatching unit 3 days in advance during the probation period. The labor dispatching unit shall timely inform the employing unit of the termination of the labor contract notified by the dispatched workers.
Article 15 If the dispatched workers are returned by the employing unit due to the provisions of Article 12 of these Regulations, and the labor dispatching unit maintains or improves the conditions agreed in the labor contract when re dispatching, if the dispatched workers do not agree, the labor dispatching unit may terminate the labor contract.
If the dispatched worker is returned by the employing unit due to the provisions of Article 12 of these Regulations, the labor dispatching unit will reduce the conditions agreed in the labor contract when re dispatching. If the dispatched worker does not agree, the labor dispatching unit shall not terminate the labor contract. Except that the dispatched worker proposes to terminate the labor contract.
Article 16 If a labor dispatching unit is declared bankrupt according to law, its business license is revoked, it is ordered to close down, it is revoked, it decides to dissolve in advance, or it will not continue to operate at the end of its business term, the labor contract shall be terminated. The employing unit shall negotiate with the labor dispatching unit to properly arrange the dispatched workers.
Article 17 If a labor dispatching unit cancels or terminates a labor contract with a dispatched worker due to the circumstances specified in Article 46 of the Labor Contract Law or Articles 15 and 16 of these Provisions, it shall pay economic compensation to the dispatched worker according to law.
Chapter V Social Insurance for Cross regional Labor Dispatch
Article 18 Where a labor dispatching unit dispatches workers across regions, it shall participate in social insurance for the dispatched workers in the place where the employing unit is located, and pay social insurance premiums in accordance with the regulations of the place where the employing unit is located, and the dispatched workers shall enjoy social insurance benefits in accordance with national regulations.
Article 19 Where a labor dispatching unit establishes a branch in the place where the employing unit is located, the branch shall go through the insurance procedures and pay social insurance premiums for the dispatched workers.
If the labor dispatching unit does not set up a branch in the place where the employing unit is located, the employing unit shall go through insurance procedures and pay social insurance premiums for the dispatched workers on behalf of the labor dispatching unit.
Chapter VI Legal Liability
Article 20 If a labor dispatching unit or an accepting unit violates the Labor Contract Law and the regulations for the implementation of the Labor Contract Law on labor dispatching, the provisions of Article 92 of the Labor Contract Law shall apply.
Article 21 Where a labor dispatching unit cancels or terminates the labor contract of a dispatched worker in violation of these Provisions, the provisions of Articles 48 and 87 of the Labor Contract Law shall apply.
Article 22 Where an employing unit violates the provisions of Paragraph 3 of Article 3 of these Provisions, the administrative department of human resources and social security shall order it to make corrections and give it a warning; If damage is caused to dispatched workers, they shall be liable for compensation according to law.
Article 23 Where a labor dispatching unit violates the provisions of Article 6 of these Provisions, the provisions of Article 83 of the Labor Contract Law shall apply.
Article 24 Where an employing unit returns dispatched workers in violation of these Provisions, the provisions of the second paragraph of Article 92 of the Labor Contract Law shall apply.
Chapter VII Supplementary Provisions
Article 25 The use of dispatched workers by the permanent representative offices of foreign enterprises and the representative offices of foreign financial institutions in China, and the use of international ocean going seafarers by crew employing units in the form of labor dispatch, are not subject to the restrictions on temporary, auxiliary, alternative positions and the proportion of workers dispatched.
Article 26 An employing unit that sends its workers to work abroad or to provide labor to families or natural persons does not belong to the labor dispatch referred to in these Provisions.
Article 27 Where an employing unit uses workers in the form of labor dispatch in the name of contracting or outsourcing, it shall be handled in accordance with these Provisions.
Article 28 If the number of dispatched workers employed by the employing unit exceeds 10% of its total employment before the implementation of these Provisions, the employing unit shall formulate an adjustment plan for employment, which shall be reduced to the specified proportion within two years from the date of implementation of these Provisions. However, if the expiration date of the labor contract and labor dispatch agreement concluded according to law before the promulgation of the Decision of the Standing Committee of the National People's Congress on Amending the Labor Contract Law of the People's Republic of China is two years after the implementation date of these Provisions, they can continue to be performed until the expiration date according to law.
The employing unit shall submit the formulated adjustment employment plan to the local human resources and social security administrative department for filing.
The employing unit shall not use new dispatched workers until the number of dispatched workers used before the implementation of these Provisions is reduced to the specified proportion.
Article 29 These Provisions shall come into force as of March 1, 2014.
