LCL 14; RAEFC 17; Open-Ended Labor Contracts

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The following provisions of the Labor Contract Law of the People’s Republic of China (LCL) and the Rules for the Administration of Employment of Foreigners in China (RAEFC) apply to open-ended labor contracts for foreigners.

While it is clear that foreigners should not conclude an open-ended labor contract, if such a contract is concluded, it is unclear how its validity would be treated by a court or arbitration committee.

(1) LCL - Labor Contract Law of the People’s Republic of China

http://english.www.gov.cn/archive/laws_regulations/2014/08/23/content_281474983042501.htm 

中华人民共和国劳动合同法

http://www.mohrss.gov.cn/SYrlzyhshbzb/zcfg/flfg/fl/201605/t20160509_239643.html

Article 14 - Conditions for Concluding and Open-Ended Labor Contract 

An open-ended labor contract is one where the employing unit and the worker have agreed not to stipulate a definite ending date.

An employing unit and a worker may conclude an open-ended labor contract upon reaching consensus through consultation. If a worker proposes or agrees to renew the labor contract or to conclude a labor contract in any of the following circumstances, an open-ended labor contract shall be concluded, unless the worker requests the conclusion of a fixed-term labor contract:

(1) The worker has been working for the employing unit for a consecutive period of 10 or more years;

(2) The worker has been working for the employing unit for a consecutive period of 10 or more years but less than 10 years away from the statutory retirement age when the employing unit introduces the labor contract system or when the State-owned enterprise has to conclude a new labor contract with him as a result of restructuring; or

(3) The worker intends to renew the labor contract after he has consecutively concluded a fixed-term labor contract with the employing unit twice and he has not been found in any of the circumstances specified in Article 39 or Subparagraph (1) or (2) in Article 40 of this Law.

If an employing unit fails to conclude a written labor contract with a worker within one year as of the date when it employs the worker, it shall be deemed to have concluded an open-ended labor contract with the latter.

第十四条　

无固定期限劳动合同，是指用人单位与劳动者约定无确定终止时间的劳动合同。

用人单位与劳动者协商一致，可以订立无固定期限劳动合同。有下列情形之一，劳动者提出或者同意续订、订立劳动合同的，除劳动者提出订立固定期限劳动合同外，应当订立无固定期限劳动合同：

（一）劳动者在该用人单位连续工作满十年的；

（二）用人单位初次实行劳动合同制度或者国有企业改制重新订立劳动合同时，劳动者在该用人单位连续工作满十年且距法定退休年龄不足十年的；

（三）连续订立二次固定期限劳动合同，且劳动者没有本法第三十九条和第四十条第一项、第二项规定的情形，续订劳动合同的。

用人单位自用工之日起满一年不与劳动者订立书面劳动合同的，视为用人单位与劳动者已订立无固定期限劳动合同。

(2) RAEFC - Rules for the Administration of Employment of Foreigners in China

(note this translation does not incorporate revisions of 2017 thus numbering is off)

http://english.www.gov.cn/services/work_in_china/2018/08/02/content_281476245886934.htm 

外国人在中国就业管理规定

http://www.mohrss.gov.cn/SYrlzyhshbzb/zcfg/flfg/gz/201704/t20170413_269433.html

Article 17 - Five Year Limitation on Labor Contracts for Foreigners

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.

第十七条

用人单位与被聘用的外国人应依法订立劳动合同。劳动合同的期限最长不得超过五年。劳动合同期限届满即行终止，但按本规定第十九条的规定履行审批手续后可以续订。

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