According to Article 16 of the Labor Contract Law of People's Republic of China (PRC), the labor contract shall come into effect after the employer and the employee reach an agreement through consultation and sign or seal the text of the labor contract.
The text of the labor contract is held by the employer and the employee respectively.
It is illegal for an employer to affix the official seal or the signature of the legal representative on a non-labor contract, and such a labor contract is invalid. Laborers may require the employer to affix a seal or the signature of an enterprise as a legal person.
Conditions for the entry into force of a labor contract
A labor contract must meet some conditions before it can take effect, including:
(1) Both parties to a labor contract must have legal qualifications; Capacity for conduct means that any party signing a contract must have the legally recognized qualification to sign a labor contract.
(2) The content and form of a labor contract must be legal and may not violate the mandatory provisions of the law or the public interests. The so-called mandatory provisions are the rights and obligations that the parties can't agree and can only do according to law.
(3) A labor contract shall be concluded by the employing unit and the employee through consultation. Both parties to a labor contract must express their true intentions, and any labor contract signed by either party with the other party by means of fraud or coercion is invalid.
Three. What should be stipulated in the labor contract
Necessary clauses refer to the contents that a labor contract must have. Paragraph 1 of Article 17 of the Labor Contract Law stipulates that a labor contract must have the following clauses:
(1) Name, domicile and legal representative or principal responsible person of the employing unit.
The name is a symbol representing the employer, that is, the name registered at the time of registration, which is equivalent to the name of a natural person.
Domicile, the domicile of the employing unit is its domicile. Where there are more than two offices, the domicile shall be the place where the main office of the employing unit is located. The employer's domicile recorded in the text of the labor contract must indicate the specific address.
The legal representative of an employer with legal person status is the main person in charge of the administrative organ of the employer. The legal representative must indicate it when registering. An employer that does not have the qualification of a legal person must specify the person in charge of the unit in the labor contract.
(2) The name and address of the laborer and the number of the resident identity card or other valid identity documents.
A name is a symbol that distinguishes a natural person from other natural persons. The name of the worker is based on the household registration, which is what is written on the ID card.
The address of the laborer shall be based on the place where the laborer's household registration is located. Where the habitual residence is inconsistent with the domicile, the habitual residence shall be the domicile.
The resident identity card number, that is, the number recorded on the resident identity card.
(3) Term of the labor contract.
Fixed-term labor contracts, as well as labor contracts with the completion of certain tasks as the term, must specify the term.
(4) Work content and work place.
The work content includes the types of workers, posts, labor quotas and tasks.
Work place refers to the specific place where workers may work.
(5) Working hours and rest and vacation.
Working hours refer to the time that workers provide labor in accordance with labor contracts and regulations in order to fulfill their labor obligations under the standards prescribed by law. Article 36 of the Labor Law stipulates: "The state practices a working-hour system in which the working hours of laborers do not exceed eight hours a day and the average working hours per week do not exceed forty-four hours."
At present, China implements three working hours systems, namely, standard working hours system, irregular working hours system and comprehensive calculation working hours system. According to the "Labor Law" and "Regulations of the State Council on Working Hours of Employees", China currently implements a standard working hour system in which workers work 8 hours a day and 40 hours a week. Conditional enterprises should implement the standard working hour system. Some enterprises cannot implement the standard working hours system due to the nature of work and production characteristics, and should ensure that workers work no more than 8 hours a day, no more than 40 hours a week, and take at least one day off every week. In addition, according to the actual production situation of some enterprises, flexible working hours and comprehensive calculation of working hours can also be implemented. Enterprises that implement flexible working hours and comprehensive working hours shall go through the examination and approval procedures in accordance with the provisions of the Ministry of Labor's Measures for Examination and Approval of Enterprises Implementing Flexible Working Hours and Comprehensive Working Hours. Enterprises directly under the central government shall implement other working and rest methods such as irregular working hours system and comprehensive working hours system, which shall be audited by the competent department of industry in the State Council and reported to the labor administrative department of the State Council for approval; Measures for the examination and approval of flexible working hours, comprehensive working hours and other working and rest measures implemented by local enterprises shall be formulated by the labor administrative departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government and reported to the labor administrative departments of the State Council for the record.
Rest means that workers can control their own time without fulfilling their labor obligations. Article 38 of the Labor Law stipulates: "The employing unit shall ensure that workers have at least 1 day of rest every week." At the same time, the employer should also ensure that workers have a certain rest time within one working day.
Vacation refers to the legal rest time that workers fail to fulfill their labor obligations and are guaranteed by wages. Article 40 of the Labor Law stipulates that during the following festivals, the employer shall arrange employees' holidays according to law: New Year's Day, Spring Festival, International Labor Day, National Day and other holidays stipulated by laws and regulations.
(6) Labor remuneration.
Labor remuneration refers to the wages paid by the employer to the workers in the form of money according to the quantity and quality of their labor.
(7) Social insurance.
Social insurance mainly includes endowment insurance, unemployment insurance, medical insurance, industrial injury insurance and maternity insurance. Participating in social insurance and paying social insurance premiums are legal obligations of employers and workers and must be fulfilled. The reason why "Labor" stipulates social insurance as a necessary clause in the labor contract is to explain the legal obligations of both parties in the labor contract, so that the employer and the employee can clearly understand the rights and obligations of both parties, and at the same time remind both parties that they must fulfill their obligations to pay social insurance premiums.
(eight) labor protection, working conditions and occupational hazard protection.
Labor protection refers to protecting workers from harm in the process of work. Working conditions refer to the necessary conditions provided by the employer for the normal work of workers, including workplaces and tools. Occupational hazards refer to the health hazards caused by workers' contact with dust, radioactive substances and other toxic and harmful substances in occupational activities, which can lead to death in severe cases. The employer shall specify the notification of occupational hazards and preventive measures in the labor contract.
(nine) other matters that should be included in the labor contract according to the provisions of laws and regulations, that is, the contents that should be stated in the labor contract according to the provisions of other laws and administrative regulations other than the Labor Contract Law.
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