上海市劳动合同条例 Shanghai Municipality, Labour Contract Regulations

ation, and shall be in writing. If the parties fail to agree, the labour contract shall continue to be performed unless otherwise stipulated by laws and regulations.

　　Article 24　In the case of a merger or division regarding the Employer, the Employer in existence after the merger or division shall continue to perform the labour contract. Where the parties reach a consensus through consultation, the labour contract may be modified or rescinded. If the parties have agreed otherwise, their agreement shall prevail.

　　Article 25　If the Employer that concludes the labour contract is not the work unit that actually uses the worker, the Employer may agree with the work unit that actually uses the worker that the obligations to the worker or any part thereof shall be assumed by the work unit that actually uses the worker. If the work unit that actually uses the worker fails to assume the obligations to the worker as agreed, the Employer shall assume such obligations.

　　Article 26　During the term of a labour contract, performance of the labour contract shall be suspended if:

　　(1) the worker is conscripted or is to perform other mandatory obligations required by the State;

　　(2) the worker is temporarily unable to perform his obligations under the labour contract, but the condition for and possibility of resumption of performance still exists; or

　　(3) there exist such other circumstances as prescribed by laws and regulations or agreed upon in the labour contract.

　　Once the circumstance requiring the suspension of the labour contract ceases to exist, performance of the labour contract shall continue unless otherwise stipulated by laws and regulations.

　　Article 27　Where a written labour contract shall be concluded but has not been concluded, but the worker has performed the labour obligations as required by the Employer, a labour contract relationship between the parties is established and the labour remuneration and labour conditions for the worker shall be determined according to the following provisions:

　　(1) if the labour remuneration and labour conditions are superior to the

corresponding particulars contained in the rules and procedures of the Employer, the provisions of the collective contract or the statutory labour standards, they shall be determined according to the parts actually performed; or

　　(2) if the labour remuneration and labour conditions are inferior to the corresponding particulars contained in the rules and procedures of the Employer, the provisions of the collective contract or the statutory labour standards, they shall be determined on a principle that favours the worker.

　　Article 28　If a part of the contents in a labour contract does not conform to the statutory labour standards, the Employer shall assume its obligations in accordance with the statutory labour standards and shall revise the part of the labour contract that does not conform to the statutory labour standards in accordance with the law.

　　PART FOUR　RESCISSION AND TERMINATION OF LABOUR CONTRACTS

　　Article 29　A labour contract may be rescinded upon the agreement of the parties thereto.

　　Article 30　If a worker wishes to terminate the labour contract, he shall give a written notice to the Employer 30 days in advance.

　　Article 31　A worker may give a notice to the Employer to terminate the labour contract at any time if:

　　(1) he is in the probation period;

　　(2) the Employer resorts to violence, threat or illegal restriction of personal freedom to force him to work; or

　　(3) the Employer fails to pay the labour remuneration or provide the labour conditions as agreed in the labour contract.

　　Article 32　Under any of the following circumstances, an Employer may rescind a labour contract subject to a written notice to the worker himself 30 days in advance:

　　(1) where the worker has suffered from illness or non-work-related injury and is not able to perform the original job nor the other work assigned to him by the Employer upon the conclusion of medical treatment;

　　(2) the worker is incompetent in the job and remains so after receiving training or being transferred to another post; or

　　(3) where a major change in the objective circumstances under which the labour contract was being drawn up has rendered such contract incapable of being carried out, and the parties have failed to reach an agreement on the amendment of such contract after negotiations.

　　If the Employer that rescinds the labour contract fails to give a notice to the worker 30 days in advance as required, the Employer shall bear the obligations to the worker that are agreed upon in the labour contract within 30 days of the date of notice.

　　Article 33　The Employer may rescind the labour contract at any time if the worker:

　　(1) has been proven to be unqualified for the employment during the probation period;

　　(2) has seriously violated the labour discipline or the rules or procedures of the Employer;

　　(3) has been seriously derelict in duties or has practised graft, causing grave harm to the interests of the Employer;

　　(4) whose criminal liability has been pursued in accordance with the law; or

　　(5) is in such other circumstances as prescribed by laws or regulations.

　　Article 34　The Employer may not rescind the labour contract pursuant to Articles 32 or 35 hereof under any of the following circumstances:

　　(1) where the worker has suffered from an occupational disease or work-related injury, and has been confirmed to have lost or partially lost capacity to work;

　　(2) where the worker is undergoing the required period of medical treatment for an illness or injury;

　　(3) where a female worker is pregnant, in confinement or nursing; or

　　(4) other circumstances stipulated by laws or regulations.

　　Article 35　When an Employer truly needs to lay off its workers according to the law, it shall explain the situation to the labour union or all worker

s and listen to their opinions. The labour layoff plan of the Employer shall be decided on the basis that the Employer consults with the labour union or workers' representatives for taking remedial measures, and shall be reported to the administrative department for labour and social security.

　　The Employer shall notify the labour union and the worker himself 30 days before the implementation of the labour layoff plan.

　　If the Employer recruits workers within six months after a labour layoff pursuant to this Article, it shall recruit the laid-off workers on a preferential basis.

　　Article 36　When an Employer unilaterally rescinds a labour contract, it shall notify the labour union in advance of the reason for the rescission. If the labour union considers that the Employer has violated laws and regulations and the relevant contract, and requests the Employer to reconsider its handling of the matter, the Employer shall study the opinion of the trade union and notify the labour union in writing of the result of the handling.

　　Article 37　A labour contract shall terminate under any of the following circumstances:

　　(1) where its term has expired;

　　(2) where the conditions agreed between the parties for terminating the labour contract occur;

　　(3) where the Employer is bankrupt, dissolved or shut down; or

　　(4) where the worker has retired, resigned or died.

　　If the parties to the labour contract have actually stopped performing the labour contract for three months, the labour contract may be terminated.

　　If the worker suffers from an occupational disease or work-related injury and is confirmed to have partially lost capacity to work, and the Employer has paid disability employment allowances in accordance with regulations, the labour contract may be terminated.

　　Article 38　If the worker suffers from an occupational disease or work-related injury and is confirmed to have lost all or most of his capacity to work, the Employer may not terminate the labour contract. However, where the parties to the labour contract reach a consensus through consultation and the Employer pays the disability employment allowances in accordance with regulations, the labour contract may be terminated.

　　Article 39　Notwithstanding the expiration of the term of the labour contract or occurrence of the conditions agreed by the parties for terminating the labour contract, if the worker is in any of the following circumstances and, at the same time, not included in any of the circumstances specified in Item (2), (3) or (4) of Article 33, the term of the labour contract shall extend until the following circumstances cease to exist:

　　(1) where the worker is undergoing the required period of medical treatment for an illness or injury;

　　(2) where a female worker is pregnant, in confinement or nursing; or

　　(3) other circumstances stipulated by laws or regulations.

　　Article 40　If a labour contract is to be concluded but has not been concluded, the worker may terminate the labour relationship at any time.

　　If a labour contract is to be concluded but has not been concluded, the Employer shall notify the worker 30 days in advance when it requests to terminate the labour relationship. However, if the worker is in any of the circumstances specified in Article 39, the labour relationship shall extend until such circumstance ceases to exist.

　　Article 41　If a labour contract is rescinded or terminated, the Employer shall issue an effective supporting document for the rescission o

┨网页设计特效库┠ http://www。z┗co⊙l。com/网页特效/