Tentative Provisions on Temporary Placement

Article 2: These Provisions shall apply to the engagement in the business of placing temporary workers by temporary placement agencies and the use of temporary placement workers by enterprises (Service Recipients of Temporary Placement Workers).

Matters relating to the use of temporary placement workers by partnership organisations (such as accounting firms and law firms) and foundations established in accordance with the law, as well as organisations such as private non-corporate entities shall be handled in accordance herewith.

Part Two: Scope and percentage of use of temporary placement workers

Article 3: Service Recipients of Temporary Placement Workers may use temporary placement workers only for temporary, auxiliary or substitute positions.

For the purposes of the preceding paragraph, the term “temporary position” means a position that exists for less than six months; the term “ancillary position” means a non-main business position that provides services for main business positions; and the term “substitute position” means a position in which another worker can replace a worker of the Service Recipient of Temporary Placement Workers who cannot work for a certain period of time for reasons such as taking time off work for study or leave.

Auxiliary positions that a Service Recipient of Temporary Placement Workers decides to be filled by temporary placement workers shall be subject to discussion with the representative congress of employees and workers or all of the employees and workers, and the presentation of a plan and comments, and shall be determined through consultations with the labour union or representatives of employees and workers held on the basis of equality and the same shall be posted internally.

Article 4: A Service Recipient of Temporary Placement Workers shall strictly control the number of temporary placement workers it uses, with such number not exceeding 10% of its total workforce.

For the purposes of the preceding paragraph, the term “total workforce” means the total of the number of persons with whom the Service Recipient of Temporary Placement Workers has entered into employment contracts and the number of temporary placement workers used.

The term “Service Recipient of Temporary Placement Workers that calculates the percentage of temporary placement workers used” means an employer that can enter into employment contracts with workers pursuant to the ECL and the Implementing Regulations.

Part Three: Entry into, and performance of, employment contracts and temporary placement agreements

Article 5: A temporary placement agency shall, in accordance with the law, enter into a written fixed-term employment contract of at least two years with a temporary placement worker.

Article 6: A temporary placement agency may specify a probation period for a temporary placement worker in accordance with the law. A temporary placement agency may specify a probation period for a temporary placement worker only once.

Article 7: A temporary placement agreement shall specify the following information:

(1) the title and nature of the temporary position;

(2) the place of work;

(3) the number of persons placed and the term of the temporary placement;

(4) the amount of labour remuneration determined on the basis of the principle of the same remuneration for the same work and the method of paying the same;

(5) the amount of social insurance premiums and the method of paying the same;

(6) working hours, and matters relating to rest and leave;

(7) relevant benefits of the temporary placement workers in the period of a work-related injury, maternity or illness;

(8) matters relating to labour safety and hygiene, and training;

(9) severance and other such expenses;

(10) term of the temporary placement agreement;

(11) the method of payment and rate of the temporary placement service fee;

(12) liability for breach of the temporary placement agreement; and

(13) other matters that laws, regulations and rules specify be included in a temporary placement agreement.

Article 8: A temporary placement agency shall perform the following obligations in respect of a temporary placement worker:

(1) truthfully informing the temporary placement worker of the matters set forth in Article 8 of the ECL, the rules that he/she is required to abide by and the provisions of the temporary placement agreement;

(2) establishing a training system and providing temporary placement workers with job knowledge and safety education and training;

(3) lawfully paying the temporary placement worker his/her labour remuneration and related benefits in accordance with state provisions and the temporary placement agreement;

(4) lawfully paying social insurance premiums for the temporary placement worker and carrying out the relevant social insurance procedures in accordance with state provisions and the temporary placement agreement;

(5) procuring the provision in accordance with the law of work protection and work safety and hygiene conditions to the temporary placement worker by the Service Recipient of Temporary Placement Workers;

(6) issuing an employment contract termination or ending certificate in accordance with the law;

(7) assisting in resolving disputes between the temporary placement worker and the Service Recipient of Temporary Placement Workers; and

(8) other matters as specified in laws, regulations and rules.

Article 9: A Service Recipient of Temporary Placement Workers shall provide a temporary placement worker the benefits relating to the job position, without discrimination, in accordance with Article 62 of the ECL.

Article 10: If a temporary placement worker is injured in an accident at work with the Service Recipient of Temporary Placement Workers, the temporary placement agency shall apply for recognition of a work-related injury in accordance with the law, and the Service Recipient of Temporary Placement Workers shall assist in the investigation and verification conducted for recognition of the work-related injury. The temporary placement agency shall bear the liability for work-related injury insurance, but may agree upon a compensation method with the Service Recipient of Temporary Placement Workers.

When a temporary placement worker applies for the conduct of an occupational disease diagnosis or assessment, the Service Recipient of Temporary Placement Workers shall be responsible for handling matters relating to the occupational disease diagnosis or assessment and truthfully providing materials such as the worker's occupational history, occupational hazard contact history and results of the testing for factors of occupational disease hazards on the work premises required for the occupational disease diagnosis or assessment. The temporary placement agency shall provide other materials required for the temporary placement worker's occupational disease diagnosis or assessment.

Article 11: Where the term of the administrative permission of a temporary placement agency has expired without being renewed or its Permit to Engage in Temporary Placement is cancelled or revoked, the employment contracts that it has entered into with temporary placement workers in accordance with the law shall continue to be performed until their expiration. Subject to a consensus reached through consultations, the parties may terminate such an employment contract.

Article 12: A Service Recipient of Temporary Placement Workers may return a temporary placement worker to the temporary placement agency if:

(1) a circumstance as set forth in Item (3) of Article 40 or in Article 41 of the ECL applies to the Service Recipient of Temporary Placement Workers;

(2) the Service Recipient of Temporary Placement Workers is declared bankrupt, has its business licence revoked or is ordered to wind up or shut down in accordance with the law, decides to dissolve early or discontinues to operate after the term of operations has expired; or

(3) the temporary placement agreement ends upon expiration.

While the temporary placement worker is without work after he/she is returned, the temporary placement agency shall pay him/her remuneration on a monthly basis at a rate no lower than the minimum wage rate specified by the local people's government.

Article 13: If the circumstance specified in Article 42 of the ECL applies to a temporary placement worker, the Service Recipient of Temporary Placement Workers may not return him/her to the temporary placement agency pursuant to Item (1) of the first paragraph of Article 12 hereof until the expiration of the placement term; and if the placement term has expired, it shall be extended and he/she may be returned only after the relevant circumstance no longer exists.

Part Four: Termination or ending of an employment contract

Article 14: A temporary placement worker may terminate his/her employment contract by giving the temporary placement agency a 30 days' prior written notice. During probation, a temporary placement worker may terminate his/her employment contract by giving the temporary placement agency a three days' prior notice. The temporary placement agency shall, in a timely manner, inform the Service Recipient of Temporary Placement Workers that the temporary placement worker has given notice of terminating his/her employment contract.

Article 15: When, after a temporary placement worker is returned to the temporary placement agency by the Service Recipient of Temporary Placement Workers for any of the reasons set forth in Article 12 hereof, the temporary placement agency offers to place him/her elsewhere at the same or better conditions than those specified in his/her employment contract and he/she refuses, the temporary placement agency may terminate his/her employment contract.

When, after a temporary placement worker is returned to the temporary placement agency by the Service Recipient of Temporary Placement Workers for any of the reasons set forth in Article 12 hereof, the temporary placement agency offers to place him/her elsewhere at conditions inferior to those specified in his/her employment contract and he/she refuses, the temporary placement agency may not terminate his/her employment contract, unless the temporary placement worker proposes the termination thereof.

Article 16: If a temporary placement agency is declared bankrupt, has its business licence revoked or is ordered to wind up or shut down in accordance with the law, decides to dissolve early or discontinues to operate after the term of operations has expired, the employment contracts shall end. The Service Recipient of Temporary Placement Workers shall hold consultations with the temporary placement agency on duly resettling the temporary placement workers.

Article 17: If a temporary placement agency terminates an employment contract with a temporary placement worker or an employment contract ends due to a circumstance as set forth in Article 46 of the ECL or Article 15 or 16 hereof, the temporary placement agency shall pay the temporary placement worker severance in accordance with the law.

Part Five: Social insurance in cross-regional temporary placement

Article 18: If a temporary placement agency places a worker in another region, it shall enrol him/her in social insurance in the place where the Service Recipient of Temporary Placement Workers is located, pay social insurance premiums in accordance with the provisions of the place where the Service Recipient of Temporary Placement Workers is located and the temporary placement worker shall be eligible for social insurance benefits in accordance with state provisions.

Article 19: If the temporary placement agency has a branch in the place where the Service Recipient of Temporary Placement Workers is located, such branch shall handle the insurance enrolment procedures and pay the social insurance premiums for the temporary placement worker.

If the temporary placement agency does not have a branch in the place where the Service Recipient of Temporary Placement Workers is located, the Service Recipient of Temporary Placement Workers shall handle the insurance enrolment procedures and pay the social insurance premiums for the temporary placement worker on behalf of the temporary placement agency.

Part Six: Legal liability

Article 20: If a temporary placement agency or Service Recipient of Temporary Placement Workers violates a provision of the ECL or the Implementing Regulations on the placement of temporary workers, the matter shall be handled in accordance with Article 92 of the ECL.

Article 21: If a temporary placement agency terminates or ends the employment contract of a temporary placement worker in a manner that violates these Provisions, the matter shall be handled in accordance with Articles 48 and 87 of the ECL.

Article 22: If a Service Recipient of Temporary Placement Workers violates the third paragraph of Article 3 hereof, the administrative department for human resources and social security shall order it to rectify the matter and give it a warning. If harm is caused to a temporary placement worker, the administrative department for human resources and social security shall be liable for compensation in accordance with the law.

Article 23: If a temporary placement agency violates Article 6 hereof, the matter shall be handled in accordance with Article 83 of the ECL.

Article 24: If a Service Recipient of Temporary Placement Workers returns a temporary placement worker in a manner that violates these Provisions, the matter shall be handled in accordance with the second paragraph of Article 92 of the ECL.

Part Seven: Supplementary provisions

Article 25: The temporary, auxiliary and substitute job restrictions and the restriction on the percentage of temporary placement workers shall not apply to the use of temporary placement workers by resident representative offices of foreign enterprises or China representative offices of foreign financial institutions, or to the use of international seagoing sailors in temporary placement arrangements by employers of sailors.

Article 26: The sending by an employer of its own workers abroad to work, or to households or the premises of natural persons to provide services does not constitute temporary placement for the purposes of these Provisions.

Article 27: Where an employer uses workers in temporary placement form under a contracting or outsourcing arrangement, matters shall be handled in accordance herewith.

Article 28: If the number of temporary placement workers used by a Service Recipient of Temporary Placement Workers before the implementation hereof exceeds 10% of its total workforce, it shall formulate a plan to adjust its use of workers and reduce it to the prescribed percentage within two years from the date of implementation hereof. However, if the terms of the employment contracts and temporary placement agreement it lawfully entered into before the promulgation of the Standing Committee of the National People's Congress, Decision on Amending the «PRC Employment Contract Law» expire after the two years from the date of implementation hereof, it may continue to perform the same in accordance with the law until their expiration.

The Service Recipient of Temporary Placement Workers shall submit its plan to adjust its use of workers to the local administrative department for human resources and social security for the record.

Until a Service Recipient of Temporary Placement Workers reduces the number of temporary placement workers it used before the implementation hereof to the prescribed percentage, it may not use new temporary placement workers.

Article 29: These Provisions shall be effective as of March 1 2014.