Contents
Chapter 1 General Provisions
Section 1 The purpose of these Rules is to standardize temporary staffing, protect employee rights, and improve employment relationships under the Employment Contracts Act of People’s Republic of China (the “Employment Contracts Act”), the Employment Contracts Act of the People’s Republic of China Administrative Regulations (the “Administrative Regulations”), and other applicable laws and administrative regulations.
Section 2 These Rules govern staffing agencies providing staffing services and the use of temporary workers by businesses (hereinafter, “staffing clients”).
The Rules also govern the use of temporary workers by partnerships, including accounting firms and law firms, foundations, and private nonprofit organizations organized pursuant to law.
Chapter 2 Restrictions on Positions for and the Ratio of Temporary Workers Used
Section 3 Staffing clients may only use temporary workers in temporary, non-core, and auxiliary positions.
“Temporary positions” are those lasting a maximum of 6 months; “non-core positions” are positions unrelated to the staffing clients’ main business; and “auxiliary positions” are positions intended to be temporarily filled while regular employees are unable to work due to reasons such as training, education, or vacation.
A staffing client intending to use temporary workers for non-core positions shall first convene a meeting with the labor union or a meeting of all employees to discuss proposed plans and review recommendations or comments. The specific supplementary positions to be filled shall be determined through negotiation with the labor union or employee representatives, and the final determinations shall be publicized internally.
Section 4 A staffing client shall strictly limit the number of temporary workers used to no more than 10% of its total workforce.
“Total workforce” encompasses all of a staffing client’s regular employees and any temporary workers used.
For the purpose of calculating temporary worker ratios, “staffing clients” refers to those employers authorized to enter into employment contracts with workers under the Employment Contracts Act and its Administrative Regulations.
Chapter 3 Execution and Performance of Employment Contracts and Staffing Agreements
Section 5 Staffing agencies shall employ temporary workers under lawful fixed-term employment contracts lasting at least two years.
Section 6 A staffing agency and a temporary worker may agree to a lawful probationary period. A staffing agency may only impose one probationary period on each temporary worker.
Section 7 Each staffing agreement shall specify the following:
(a) The title and description of the positions assigned to temporary workers;
(b) The location where the work is to be performed;
(c) The number of temporary workers and the duration of their assignments;
(d) The amount and method of compensation and benefits that are in principle equal pay for equal work;
(e) The amount and method of social security contributions;
(f) Provisions for work hours, leaves, and vacations;
(g) Provisions for work-related injury, maternity, and medical benefits for temporary workers;
(h) Safe working conditions, occupational safety and health protections, and health training;
(i) Financial compensation and associated costs;
(j) The duration of the staffing agreement;
(k) Payment standards and methods for staffing service fees;
(l) Liability for breach of the staffing agreement;
(m) Other items required to be included in staffing agreements by applicable laws, regulations, or rules.
Section 8 Staffing agencies shall have the following obligations to temporary workers:
(a) Truthfully provide temporary workers with all information required under Employment Contracts Act §8, pertinent company policies, and the terms of the staffing agreement;
(b) Set up training systems to provide temporary workers with necessary job skills and safety instruction;
(c) Pay temporary worker compensation and benefits as required by law and the staffing agreement;
(d) Enroll temporary workers in social security and pay social security contributions for temporary workers as required by law and the staffing agreement;
(e) Collaborate with staffing clients to ensure temporary workers have the necessary worker protections and a safe and healthy work environment, as mandated by law;
(f) Provide documentation of any legal cancellation or termination of the employment contract;
(g) Assist in resolving disputes between staffing clients and temporary workers;
(h) Comply with other obligations required by applicable laws, regulations, or rules.
Section 9 A staffing client shall not discriminate against temporary workers and shall provide them benefits commensurate to their positions as required under Employment Contracts Act §62.
Section 10 If a temporary worker sustains a work-related injury while assigned to a staffing client, the staffing agency shall file a workplace incident report pursuant to law, and the staffing client shall cooperate by verifying all necessary information. The staffing agency shall be responsible for paying worker’s compensation benefits and may negotiate compensation arrangements with the staffing client.
A staffing client shall prepare filings for occupational illness evaluations and determinations at the request of a temporary worker, truthfully providing all necessary materials, including employment history, records of exposure to occupational hazards, and results of any relevant occupational illness risk evaluations. The staffing agency shall furnish any additional materials needed for such assessments and determinations.
Section 11 If a staffing agency’s administrative license expires or its Staffing Agency Permit is suspended or canceled, the agency shall continue to perform all lawfully executed employment contracts with temporary workers until the expiration of the employment term. Alternatively, the parties may negotiate to terminate the employment contract earlier.
Section 12 A staffing client may end the temporary worker’s assignment from the staffing agency in the event of the following:
(a) The staffing client is permitted to end the temporary worker assignment under §40(c) and §41 of the Employment Contracts Act.
(b) The staffing client has declared bankruptcy pursuant to law, had its business license suspended, been ordered to wind up or shut down, or otherwise chooses to cease operations at the end of its business term;
(c) Upon expiration of the staffing agreement.
Thereafter, during the time the employee has no assignment, the staffing agency shall pay the temporary worker a monthly wage at no less than the local minimum wage standard during any period in which the worker is awaiting reassignment.
Section 13 The employer may not end the assignment from a staffing agency under §12(a) of these Rules prior to the expiration of the staffing term, for a temporary worker covered by an Employment Contracts Act §42 event; their staffing term shall be extended until the expiration of such events.
Chapter 4 Termination and Cancellation of Employment Contracts
Section 14 A temporary worker may terminate the employment contract by providing the staffing agency with thirty days’ written notice. During a probationary period, a temporary worker may terminate their employment contract by providing the staffing agency with three days’ written notice. Upon receipt of such notice, the staffing agency shall promptly notify the staffing client of the termination.
Section 15 A staffing agency may terminate the employment contract if a temporary worker returned by a staffing client under §12 of these Rules refuses a reassignment under terms and conditions that are the same or more favorable than those in the employment contract.
Additionally, a staffing agency may not terminate the employment contract if a temporary worker whose assignment is ended by a client under §12 of these Rules refuses a reassignment under terms and conditions less favorable than those in the employment contract, unless the worker expressly requests the contract be terminated.
Section 16 If a staffing agency declares bankruptcy, has its business license suspended, is ordered to wind up or shut down, or otherwise chooses to cease operations at the end of its business term, the staffing agency and staffing client shall negotiate appropriate arrangements for the affected temporary workers.
Section 17 A staffing agency canceling or terminating an employment contract under §46 of the Employment Contracts Act or §§15 or 16 of these Rules shall pay the affected temporary worker severance as required by law.
Chapter 5 Social Security for Temporary Workers Assigned to Different Regions
Section 18 When a staffing agency assigns temporary workers to a staffing client located in a different administrative region, the staffing agency shall enroll those workers in social security and pay the required social security contributions in compliance with local laws of the region where the staffing client is located, ensuring temporary workers receive all social security benefits required by national law.
Section 19 If the staffing agency maintains a local business qualification in the staffing client’s region, social security enrollment and contributions for the temporary workers shall be processed through the local division.
If the staffing agency has not qualified a division to do business locally in the staffing client’s region, the staffing client shall process social security enrollment and contributions for the temporary workers on behalf of the staffing agency.
Chapter 6 Liability
Section 20 Violations of the Employment Contracts Act and its Administrative Regulations by staffing clients or staffing agencies shall be governed by Employment Contracts Act §92.
Section 21 Any cancellation or termination of an employment contract by a staffing agency in violation of these Rules shall be governed by Employment Contracts Act §§48 and 87.
Section 22 If a staffing client violates §3(c) of these Rules, the human resources and social welfare regulator shall issue a warning and order corrections. The staffing client shall also be liable for indemnifying temporary workers for any damages pursuant to law.
Section 23 If a staffing agency violates §6 of these Rules, it shall be subject to Employment Contracts Act §83.
Section 24 A staffing client that returns temporary workers in violation of these Rules shall be penalized pursuant to Employment Contracts Act §92 (b).
Chapter 7 Miscellaneous
Section 25 Permanent representative offices of foreign businesses and financial institutions using temporary workers, as well as staffing clients using temporary workers as international seafarers, are exempt from restrictions on temporary, non-core, and auxiliary positions, and from workforce ratio requirements.
Section 26 Any employer assigning its employee to work overseas, for a household, or for an individual shall not be deemed to be engaging in staffing under these Rules.
Section 27 Any employer that uses temporary workers in the form of “outsourcing” or “contracting” are nonetheless governed by these to these Rules.
Section 28 A staffing client that exceeded the 10% temporary worker ratio before these Rules took effect shall adjust its workforce plan to comply with legal requirements within two years following the effective date of these Rules. Employment contracts and staffing agreements lawfully executed prior to the issuance of the Decision to Amend the PRC Employment Contracts Act by the Standing Committee of the National People’s Congress may remain in effect until their expiration date, even if that date extends beyond the two-year adjustment period.
Staffing clients shall file their adjusted workforce plans with the appropriate local human resources and social welfare agency.
No additional temporary workers may be hired until the staffing client has met temporary worker use ratio requirements.
Section 29 These Rules shall take effect on March 1, 2014.