Matters Relevant to the Establishment of an Employment Relationship Circular
关于确立劳动关系有关事项的通知
This Circular further enhances the legal protection for workers. Employment relationships shall nonetheless be established in certain circumstances in the absence of a written employment contract.
(Issued by the Ministry of Labour and Social Security on May 25 2005.)
(劳动和社会保障部于二零零五年五月二十五日下发。)
Lao She Bu Fa [2005] No.12
劳社部发〔2005〕12号
Labour and social security departments (bureaux) of the provinces, autonomous regions and municipalities directly under the central government:
各省、自治区、直辖市劳动和社会保障厅(局)：
Recently, authorities in certain regions have reported that some employers, when recruiting workers, do not execute employment contracts with them, and when employment disputes arise, it is difficult to protect the lawful rights and interests of workers due to the difficulty in determining the employment relationship between the parties, thus adversely affecting the harmony and stability of employment relationships. We hereby notify you on matters relevant to the establishment of an employment relationship between an employer and a worker as follows, in order to regulate the employment of workers by employers, protect the lawful rights and interests of workers and promote social stability:
近一个时期，一些地方反映部分用人单位招用劳动者不签订劳动合同，发生劳动争议时因双方劳动关系难以确定，致使劳动者合法权益难以维护，对劳动关系的和谐稳定带来不利影响。为规范用人单位用工行为，保护劳动者合法权益，促进社会稳定，现就用人单位与劳动者确立劳动关系的有关事项通知如下：
1. If an employer has recruited a worker but failed to enter into a written employment contract with him or her, an employment relationship shall nonetheless be established if:
一、 用人单位招用劳动者未订立书面劳动合同，但同时具备下列情形的，劳动关系成立。
(1) the employer and the worker satisfy the qualifications of a party as specified in laws and regulations;
(一) 用人单位和劳动者符合法律、法规规定的主体资格;
(2) the worker is subject to the employment rules and regulations formulated by the employer in accordance with the law, is subject to the employment management of the employer and engages in remunerated work arranged by the employer; and
(二) 用人单位依法制定的各项劳动规章制度适用于劳动者，劳动者受用人单位的劳动管理，从事用人单位安排的有报酬的劳动;
(3) the work provided by the worker is a component of the employer's business.
(三) 劳动者提供的劳动是用人单位业务的组成部分。
2. When determining whether an employment relationship exists between two parties in circumstances where the employer did not execute an employment contract with the worker, reference may be made to the following documentation:
二、 用人单位未与劳动者签订劳动合同，认定双方存在劳动关系时可参照下列凭证：
(1) proof or record (staff and worker wage payment roll) of payment of wages and record of payment of the various social insurance premiums;
(一) 工资支付凭证或记录(职工工资发放花名册)、缴纳各项社会保险费的记录;
(2) identification document, such as 'work ID card', 'service ID card', etc. issued to the worker by the employer;
(二) 用人单位向劳动者发放的“工作证”、“服务证”等能够证明身份的证件;
(3) recruitment record, such as the recruitment 'registration form', 'application form', etc. of the employer completed by the worker;
(三) 劳动者填写的用人单位招工招聘“登记表”、“报名表”等招用记录;
(4) record of attendance; and
(四) 考勤记录;
(5) the testimony of other workers, etc.
(五) 其他劳动者的证言等。
The employer bears the burden of proof in respect of the documents specified in Items (1), (3) and (4) above.
其中，(一)、(三)、(四)项的有关凭证由用人单位负举证责任。
3. If the recruitment of a worker by an employer satisfies Section One, the employer shall belatedly execute an employment contract with the worker, the term of which shall be determined by the parties through consultations. If they fail to reach a consensus through consultations, either party may terminate the employment relationship. However, if the worker meets the conditions for an employment contract without a fixed term and requests such a contract, the employer shall enter into such a contract with the worker.
三、 用人单位招用劳动者符合第一条规定的情形的，用人单位应当与劳动者补签劳动合同，劳动合同期限由双方协商确定。协商不一致的，任何一方均可提出终止劳动关系，但对符合签订无固定期限劳动合同条件的劳动者，如果劳动者提出订立无固定期限劳动合同，用人单位应当订立。
If the employer terminates the employment relationship, it shall pay the worker severance pay in an amount equivalent to one month's wages for each year the worker worked for the employer.
用人单位提出终止劳动关系的，应当按照劳动者在本单位工作年限每满一年支付一个月工资的经济补偿金。
4. If an employer, such as a construction enterprise, mining enterprise, etc., contracts work (business) or operating rights out to an organization or natural person without qualifications to employ workers, the employer with the qualifications to employ workers shall bear responsibility as the employing entity in respect of the workers recruited by the organization or natural person.
四、 建筑施工、矿山企业等用人单位将工程(业务)或经营权发包给不具备用工主体资格的组织或自然人，对该组织或自然人招用的劳动者，由具备用工主体资格的发包方承担用工主体责任。
5. If a dispute arises between a worker and his or her employer concerning whether an employment relationship exists between them, an application may be made to the competent labour dispute arbitration commission for arbitration.
clp reference:2400/05.05.25prc reference:劳社部发 [2005] 12 号promulgated:2005-05-25五、 劳动者与用人单位就是否存在劳动关系引发争议的，可以向有管辖权的劳动争议仲裁委员会申请仲裁。
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