|
Contents
Chapter I General
Provisions
Chapter II Employment
License
Chapter III Application
and Approval
Chapter IV Labor
administration
Chapter V Penalty
Provisions
Chapter VI Supplementary
Provisions
Chapter I
General Provisions
Article 1
These Rules are formulated in accordance with the provisions of
the relevant laws and decrees for the purpose of strengthening
the administration of employment of foreigners in China.
Article 2
The term "foreigners" in these Rules refers to the persons, who
under the Nationality Law of the People's Republic of China, do
not have Chinese nationality.
The term "employment of
foreigners in China" in these Rules refers to acts of foreigners
without permanent residence status to engage in remunerative
work within Chinese territory in accordance with it laws.
Article 3
These Rules shall apply to employed foreigners within Chinese
territory and their employers.
These Rules shall not
apply to foreigner who enjoy diplomatic privileges and
immunities employed by foreign embassies or consulates, or the
offices of the United Nations and other international
organizations in China.
Article 4
The labor administrative authorities of the people's government
of the provinces, autonomous regions and municipalities directly
under the Central Government and those at the prefecture and
city level with their authorization are responsible for the
administration of employment of foreigners in China.
Chapter II
Employment License
Article 5
The employer shall apply for the employment permission if it
intends to employ foreigners and may do so after obtaining
approval and the People's Republic of China Employment License
for Foreigners (hereinafter referred to as the "Employment
License")
Article 6
The post to be filled by the foreigner recruited by the employer
shall be the post of special need, a post that cannot be filled
by any domestic candidates for the time being but violates no
government regulations.
No employer shall employ
foreigners to engage in commercialized entertaining performance,
except for the persons qualified under Article 9 (3) of these
Rules.
Article 7
Any foreigner seeking employment in China shall meet the
following conditions:
(1) 18 years of age or
older and in good health;
(2) with professional
skills and job experience required for the work of intended
employment;
(3) with no criminal
record;
(4) a clearly-defined
employer;
(5) with valid passport
or other international travel document in lieu of the passport
(hereinafter referred to as the "Travel Document")
Article 8
Foreigner seeking employment in China shall hold the Employment
Visas for their entry (In case of agreement for mutual exemption
of visas, the agreement shall prevail.), and may work within
Chinese territory only after they obtain the Employment Permit
for Foreigner (hereinafter referred to as the "Employment
Permit") and the foreigner residence certificate.
Foreigners who have not
been issued residence certificate (i.e. holders of F, L, C or G
type visas), and those who are under study or interim programs
in China and the families of holders of Employment Visas shall
not work in China. In special cases, employment may be allowed
when the foreigner changes his status at the public security
organs with the Employment License secured by his employer in
accordance with the clearance procedures, under these Rules
foreigners changes his status at the public security organs with
the Employment License and receives his Employment Permit and
residence certificate.
The employment in China
of the spouses of the personnel of foreign embassies,
consulates, representative offices of the United Nations System
and other international organization in China shall follow the
Provisions of Ministry of Foreign Affairs of the People's
Republic of China Concerning the Employment of the Spouses of
the Personnel of Foreign Embassies, Consulates and the
Representative Offices of the United Nations System in China and
be handled in accordance with the clearance procedures provided
for in the second paragraph of this article.
The Employment License
and the Employment Permit shall be designed and prepared
exclusively by the Ministry of Labour.
Article 9
Foreigners may be exempted from the Employment License and
Employment Permit when they meet any of the following
conditions:
(1) foreign professional
technical and managerial personnel employed directly by the
Chinese government or those with senior technical titles or
credentials of special skills recognized by their home or
international technical authorities or professional associations
to be employed by Chinese government organs and institutions and
foreigners holding Foreign Expert Certificate issued by China's
Bureau of Foreign Expert Affairs;
(2) foreign workers with
special skills who work in offshore petroleum operations without
the need to go ashore for employment and hold "Work Permit for
Foreign Personnel Engaged in the Offshore Petroleum Operations
in the People's Republic of China";
(3) foreigner who
conduct commercialized entertaining performance with the
approval of the Ministry of Culture and hold "Permit for
Temporary Commercialized Performance".
Article 10
Foreigners may be exempted from the Employment License and may
apply directly for the Employment Permit by presenting their
Employment Visas and relevant papers after their entry when they
meet any of the following conditions:
(1) foreigners employed
in China under agreements or accords entered into by the Chinese
government with foreign governments or international
organizations for the implementation of Sino-foreign projects of
cooperation and exchange;
(2) chief
representatives and representative of the permanent offices of
foreign enterprises in China.
Chapter III
Application and
Approval
Article 11
The employer when intending to employ a foreigner, stall fill
out the Application Form for the Employment for Foreigners
(hereinafter referred to as the "Application Form") and submit
it to its competent trade authorities at the same level as the
labor administrative authorities together with the following
documentation:
(1) the curriculum vitae
of the foreigner to be employed;
(2) the letter of
intention for employment;
(3) the report of
reasons for employment;
(4) the credentials of
the foreigner required for the performance of the job;
(5) the health
certificate of the foreigner to be employed;
(6) other documents
required by regulations.
The competent trade
authorities shall examine and approve the application in
accordance with Articles 6 and 7 of these Rules and relevant
laws and decrees.
Article 12
After the approval by the competent trade authorities, the
employer shall take the Application Form to the labor
administrative authorities of the province, autonomous region or
municipality directly under the Central Government or the labor
administrative authorities at the prefecture and city level
where the said employer is located for examination and
clearance. The labor administration authorities described above
shall designate a special body (hereinafter referred to as the
"Certificate Office") to take up the responsibility of issuing
the Employment License. The Certificate Office should take into
consideration of the opinions of the competent trade authorities
and the demand and supply of labor market, and issue the
Employment License to the employer after examination and
clearance.
Article 13
Employers at the central level or those without the competent
trade authorities may submit their application directly to the
Certificate Office of the labor administrative authorities for
the Employment Permit.
The examination and
approval by the competent trade authorities is not required for
foreign-funded enterprises to employ foreigners, and such
enterprise may submit their applications directly to the
Certificate Office of the labor administrative authorities for
the Employment License, bringing with them the contract,
articles of association, certificate of approval, business
license and the documentation referred to in Article 11 of these
Rules.
Article 14
Employers with permission to employ foreigners shall not send
the Employment License nor the letter of visa notification
directly to the foreigners to be employed, and they must be sent
by the authorized unit.
Article 15
Foreigner with permission to work in China should apply for
Employment Visas at the Chinese embassies, consulates and visa
offices, bringing with them the Employment License issued by the
Ministry of Labor, the letter or telex of visa notification sent
by the authorized unit and the valid passport or Travel
Document.
Personnel referred to in
Article 9 (1) of these Rules should apply for the Employment
Visas by presenting their letter or telex of visa notification
by authorized unit; personnel referred to in Article 9 (2)
should apply for the Employment Visas by presenting their letter
or telex of visa notification issued by the China National
Offshore Oil Corporation; personnel referred to in Article 9 (3)
should apply for the Employment Visas by presenting their letter
or telex of visa notification issued by the foreign affairs
office under the people's government of provinces, autonomous
regions or municipalities directly under the Central Government
and the relevant documents of approval of the Ministry of
Culture (addressed to the Chinese embassies, consulates or visa
offices).
Personnel referred to in
Article 10 (1) of these Rules should apply for the Employment
Visas by presenting their letter or telex of visa notification
by authorized unit and the documentation on projects of
cooperation and exchange; personnel refereed to in Article 10
(2) should apply for the Employment Visas by presenting their
letter or telex of visa notification by the authorized unit and
the registration certification issued by the administrative
authorities of industry and commerce.
Article 16
The employer should, within fifteen days after the entry of the
employed foreigner, take to the original Certificate Office the
Employment License, the labor contract with the said foreigner
and his passport or Travel Document to receive his Employment
Permit while filling out the Foreigner Employment Registration
Form.
The Employment Permit
shall be effective only within the area specified by the
Certificate Office.
Article 17
Foreigners who received their Employment Permit should, within
thirty days after their entry, apply for the residence
certificate with the public security organs bringing with them
their Employment Permit. The term of validity of the residence
certificate may be determined in accordance with the term of
validity of the Employment Permit.
Chapter IV
Labor administration
Article 18
The employer and its foreign employee should, in accordance with
law, conclude a labor contract, the term of which shall not
exceed five years. Such contract may be renewed upon expiration
after the completion of clearance process in accordance with
Article 19 of these Rules.
Article 19
The Employment Permit of the employed foreigner shall cease to
be effective upon the expiration of the term of the labor
contract between the foreigner and his employer. If renewal is
required, the employer should, within thirty days priors to the
expiration of the contract, submit an application to the labor
administrative authorities for the extension of term of
employment, and after approval is obtained, proceed to go
through formalities for the extension of the Employment Permit.
Article 20
The foreign employee should, within ten days after obtaining the
approval for extension of his term of employment in China or the
change of his employment location or his employer, go through
formalities for the extension or change of his residence
certificate at the local public security organs.
Article 21
After the termination of the labor contract between the foreign
employee and his employer, the employer should promptly report
it to the labor and public security authorities, return the
Employment Permit and the residence certificate of the said
foreigner, and go through formalities for his exit from China.
Article 22
The wage paid to the foreign employee by the employer shall not
be lower than the minimum wage in the locality.
Article 23
The working hours, rest and vacation, work safety and hygiene as
well as the social security of the foreign employees in China
shall follow the relevant provisions of the state.
Article 24
The employer of the foreign employee in China shall be the same
as specified in his Employment License.
When the foreigner
switches employers within the area designated by the Certificate
Office but stays in a job of the same nature, the change must be
approved by the original Certificate Office and recorded in his
Employment Permit.
If the foreigner is to
be employed outside the area designated by the Certificate
Office or switch employer within original designated area while
taking up jobs of a different nature, he must go through
formalities for a new Employment License.
Article 25
For foreigner whose residence status is revoked by public
security organs due to his violation of Chinese law, his labor
contract should be terminated by his employer and his Employment
Permit be withdrawn by the labor administrative authorities.
Article 26
Should the labor disputes arise between the employer and its
foreign employee, they should be handle in accordance with the
Labor Law of the People's Republic of China and the Regulations
of the People's Republic of China on Settlement of Labor
Disputes in Enterprises.
Article 27
The labor administrative authorities shall conduct an annual
inspection of the Employment Permit. Within thirty days prior to
the end of every year of employment of the foreigner, the
employer should go through formalities of the annual inspection
at the Certificate Office of the labor administrative
authorities. The Employment Permit shall automatically cease to
be effective when the deadline is passed.
In case of loss or
damage of the Employment Permit during the term of his
employment in China, the foreigner should promptly report it to
the original Certificate Office and go through formalities for
the issuance of the Employment Permit.
Chapter V
Penalty Provisions
Article 28
Violation of theses Rules, i.e. foreigners who work without the
Employment Permit or employers which hire foreigner without the
Employment License, shall be handled by the public security
organs in accordance with Article 44 of the Rules Governing the
Implementation of the Law of the People's Republic of China on
the Entry and Exit of Aliens.
Article 29
For Foreigner who refuse to have their Employment Permit
inspected by the labor administrative authorities, change their
employers and professions at will or extend their term of
employment without permission, the labor administrative
authorities shall withdraw their Employment Permit and recommend
that their residence status be canceled by the public security
organs. In case of deportation, the costs and expenses shall be
borne by the said foreigners or their employers.
Article 30
For foreigners and employers who forge, alter, falsely use,
transfer, buy and sell the Employment Permit and the Employment
License, the labor administrative authorities shall take over
the Employment Permit and the Employment License in question,
confiscate the illegal proceeds and impose a fine between ten
thousand and one hundred thousand RMB yuan. In serious cases
which constitute a crime, their criminal responsibility of the
perpetrators shall be looked into by the judicial authorities.
Article 31
In case of abuse of power, illegal collection of fees, and
fraudulent practices on the part of official personnel of the
Certificate Office or other departments, they shall be
investigated in accordance with the law for their criminal
responsibility if crimes are committed, or they shall be subject
to administrative disciplinary measures if the cases do not
constitute a crime.
Chapter VI
Supplementary
Provisions
Article 32
The employment in the mainland of the residents of Taiwan, Hong
Kong and Macao region of China shall follow the Rules for the
Administration of the Employment in the Mainland of the
Residents of Taiwan, Hong Kong and Macao.
Article 33
These Rules do not apply to the employment of foreigners in
China's Taiwan, Hong Kong and Macao region.
Article 34
Individual economic organizations and private citizens are
prohibited from employing foreigners.
Article 35
The labor administrative authorities of the provinces,
autonomous regions and municipalities directly under the Central
Government may formulate their own rules for implementation of
these Rules in conjunction with the public security and relevant
authorities in the locality, and report it to the Ministry of
Labor, Ministry of Public Security, Ministry of Foreign Affairs
and the Ministry of Foreign Trade and Economic Cooperation for
putting on record.
Article 36
The Ministry of Labors shall be responsible for the
interpretation of these Rules.
Article 37
These Rules shall enter into force as of 1 May 1996. The
Provisions Concerning the Employment in China of the Foreigners
Who Have Not Yet Obtained Residence Certificate and Foreigners
Who Study in China jointly promulgated by the former Ministry of
Labor and Personnel and the Ministry of Public Security on 5
October 1987 shall be annulled simultaneously |
