Job Discussion Forums

[nolefan]

[bearcanada]

It is quite correct to say that I am not an expert on everything in China - including legal matters. I do know something about contracts and contract law, but not everything, and my posts do show that. My legal comments relate to only a few narrow points.

I am sorry you were offended by my remarks. I did not mean to belittle you with my reference to kiddies. Forgive me for that.

In fact, you are not a child. And from that, you should be able to reason more clearly. I said that legal advice was not the same as recommending a restaurant because there could be serious consequences for the people who follow it. And it isn't quite fair that someone should suffer a loss from following uninformed advice.

The solution to the point you raise is to differentiate between an opinion - which is something you think or believe to be true, or wish or hope to be true, but with no certain knowledge - and facts - where you do know something to be true, at least in some cases.

The advantage is that people will not take an opinion to heart and blindly follow it and maybe have trouble from it. They will know it for what it is, still treat it with some value, but continue looking for more conclusive evidence before deciding. It is the times when people state an opinion as fact that others can be misled. Like the statements that penalty clauses are unenforceable and how you have to prove damages. Those statements were not offered as the opinions of a legally unqualified person; they were stated as facts, by someone who apparently had firm knowledge. An equally uninformed person might well believe them fully and act on them as though they were true. And then discover to his chagrin that a school could indeed enforce a penalty. And then where is the person who gave the advice? Safely at home dispensing wrong advice to more people.

I suggested that teachers try to have the penalty clause removed from the contract. One post stated as fact that this was essentially impossible "if you want to be legally employed in China", and that maybe you could try to specify some 'valid reasons', but that there was "no other option - no other way". But there are other ways, and those ways are stated. They are real, not imaginary, and people have used them. And in any case, no teacher is likely to come to harm by trying to delete the clause. But this person wants us to refuse to try.

I receive emails from teachers who tell me they have removed the penalty clause from their contracts, but this poster above says, in BOLD letters, that this is completely wrong, cannot be done, and there is "no avoiding it". In the face of clear proven facts, we have someone stating a legal fact and strongly advising others to believe and follow. How do you deal with that?

It wasn't my intention to inhibit discussion. I just don't want innocent people to suffer losses by following advice that isn't (or may not be) correct. We are not on opposite sides.

I now see a post stating that a teacher must be presented with a "numbered and watermarked" SAFEA contract. I don't question that, but the circumstances of the contract. The writer then states that it doesn't apply to private institutions, and that brings us closer to useful and dependable information. So now, there is "another way", at least for teachers at private institutions - who are still legally employed and who, for all I know, might comprise 75% of all foreign teachers in China. We weren't told that before. But the post suggests strongly that the wording in private contracts may be negotiable but the wording in SAFEA contracts is not negotiable at all.

Nolefan says you have to sign a SAFEA contract to get your FEC. Fine. But are you also saying that you MUST sign that contract in its original form, without changes? Are you saying that the contract is invalid and the teacher illegally employed if amendments are made to the wording? What, exactly, do you know for certain? We need to know.

I would like to know if anyone has firm knowledge that a SAFEA contract CANNOT be amended in any way. Does anyone know for certain? I have information that seems fully reliable from teachers who appear to have negotiated significant changes to this contract. Do any of you know for a fact that this is, or is not, true? I think everyone would like to know this.

Also, Middy made a point somewhere above that of the Chinese and English versions of a contract the English copy will be the governing document. I was surprised to see this because I was told by someone from this board (who presented himself as being very knowledgeable) that it was the Chinese version that would take precedence - both with the school and especially in arbitration. Middy is now saying the opposite, and this is not a trivial difference. Does Middy or anyone know absolutely for certain that one version or the other is the governing document, and in what circumstances this would be true?

The poster above also says that a penalty clause is "standard in a contract" for Chinese "customs and businesses". I don't believe that, and would like some proof. It is such a sweeping and far-reaching statement it is almost assuredly untrue. I have never heard of anyone working for a Chinese business being required to sign a contract with a penalty clause in it. Penalty clauses are normally for contracts requiring performance guarantees - like a factory having to produce toys for Sears 'in time for Christmas'. It is almost never used in an employment context and I can't believe that you must agree to a penalty clause in order to get a job with a Chinese company. So I have the same question: do you know absolutely for certain that employees generally must agree to this clause to get a job in China?


Disclaimer:
"Do not eat. Not for use by children under 3. Do not leave in direct sunlight. May cause headache if worn instead of hat. Colors may vary. Batteries not included." (Courtesy of DOS)

[Babala]

To the OP,
I have had that clause in all of my contracts here and have never had a problem. I have worked with teachers who have had to leave because of a family member's illness and were not charged a breach penalty. I think you will find that family is very important over here and FAO's do understand when you need to be with yours. Of course there are a few shady school so do your research before you choose. Talk to some of the current FT's and ask if they know of anyone in the past who had a problem.

To bearcanada,
You keep talking about contracts and how you know the law. Would this be the laws of China or Canada?

[bearcanada]

Babala, you've misrepresented my position a bit. It's true I keep talking about contracts, but I've made no statement about how I "know the law". That's unfair. To answer your question, I've had to do a great deal of contract drafting over the years, primarily in North America but a good bit internationally as well. And that includes dealing with contracts in China.

But this topic is limited to teachers' contracts, more specifically the SAFEA contract, and to questions of whether it can be amended. I believe what you say about not having a problem with a penalty clause, but that's not the main point. I'm trying to discover hard facts on whether this particular contract can be amended or, as Nolefan seems to claim, it is impossible to do so.


Disclaimer:
"Do not eat. Not for use by children under 3. Do not leave in direct sunlight. May cause headache if worn instead of hat. Colors may vary. Batteries not included." (Courtesy of DOS)

[7969]

looks like chinamoviemagic has a new rival.

[nolefan]

As I stated, the SAFEA contract cannot be changed. You can however add things to the appendix and specify whatever the school and yourself agree on. I have said that in my first post!!!


My contract is the standard one but i have stipulation specifying each party's responsibilities on the appendix as well as what would constitute a breach of contract. The school and I have also agreed to a specific amount in case such a breach happens.

[bearcanada]

Nolefan, if I understand your comment correctly, you are saying that the contract can be amended at will by agreement between the parties. It's just that the changes are put into the appendix instead of the main contract. Is this correct?

If it is, how do you explain your earlier position that the penalty clause can't be removed, that there is no way? Obviously there is a way to delete it - by making the change in the appendix. Is this correct or not?

Disclaimer:
"Do not eat. Not for use by children under 3. Do not leave in direct sunlight. May cause headache if worn instead of hat. Colors may vary. Batteries not included." (Courtesy of DOS)

[Babala]

bearcanada,
A school has a right to have a breach penalty and should. When you consider how much money a school invests in a teacher (medical, visa...) they have every right to demand some compensation if the FT decides to back out. My problem with the advice you are giving out is that you are not considering that a FT refuses to sign a standard clause in a contract will probably result in the school saying forget it, we don't want them. Who would want to hire someone who is trouble from the start? I brought this point up with you before on another thread.

[7969]

[nolefan]

bearcanada,

again, the SAFEA contract CANNOT be changed because it is a pre-printed booklet with a serial number. Any changes have to be included in the appendix.

As to the breach of contract clause, NO public school in their right mind would waive that. I stick by this statement no matter what anyone else says. I have dealt with enough teacher contracts in China over the past year and a half to know better.

I second babala's opinion as far as your advice goes. No matter how good your intentions are, you are providing advice that will simply NOT work in china. A lot of times, things here do not make sense. people stick by the rules without challenging them and that is just the way it is. If a prospective teacher goes to a school and mentions that he does not want the breach of contract clause in the contract, the school will just forget about him/her because no one would dare challenge a government authority ( in this case SAFEA). So please, refrain from giving that kind of advice and making it into a general rule. You have done so before in reference to other topics and were proven wrong.

A better advice for you to try and distribute would be for teachers to have the appendix to their SAFEA contract specify what constitutes a breach of contract. As another poster mentioned, visa regulations are tightening up around here and a lot of things that people were able to do just wont cut it anymore.

Again, this advice applies to legally employed teachers that receive their resident permit AND their FEC. Any school could hire a foreigner under different pretense ( marketing manager, VP of BS, ....) and use them as a teacher without having to worry about a FEC. I'm not talking about those folks.

So please be careful with the advice you're offering because you might cause teachers to miss out on a good job or get them in trouble.

I will not comment on this issue anymore because it is a waste of time. You're comfortably sitting in a your living room in canada while we are here in the middle of things... please give us some credit for knowing better than you do in this case.

If you ever decide to come to China and teach, you will see the difference between theory and practice.

Nolefan over and out

[bearcanada]

Nolefan, what you did in this thread is irresponsible at best. You've lied to everyone. You deliberately tried to mislead everyone into believing that it was not possible to avoid a penalty clause in a teaching contract. You knew your statements were untrue, but you made them anyway.

You deliberately tried to have readers believe something that you knew was untrue, with no apparent thought or consideration for what they might lose by believing and following your words. And you have the brass to tell me to be careful of my advice because teachers might get into trouble? Your position is hypocritical and you're a fraud.

Your conviction about the legitimacy or need for a penalty clause is not a justification for lying and telling people "there is no way to avoid it". There is a way to avoid it - by amending the appendix to the contract.

And your comments about teachers losing jobs is ill-conceived as well, since I've had teachers tell me they have asked for the amendment and received it without argument.

Your personal biases color everything you have said to the extent that your observations are all suspect, and it is your advice that people should avoid because you can't be trusted to tell the truth.

So now instead of facing your dishonesty like a man, you're going to take the high moral ground and refuse to respond because "it's a waste of time"? Fine.


Disclaimer:
"Do not eat. Not for use by children under 3. Do not leave in direct sunlight. May cause headache if worn instead of hat. Colors may vary. Batteries not included." (Courtesy of DOS)

[Midlothian Mapleheart]

Edited to remove offensive content.

Middy

[Keath]

beaR;

Come to court with me next month in Beijing, and watch how we beat a school on exactly this issue. I will be flying in December 14th, Beijing capital airport.

PM me if you want to join our party and then you can learn something before your fingers start walking on the advice other people give.

hack

[Keath]

Also, I'd just like to add.. I think you have serious issues going on.. You should be on the psych thread, not giving advice on a forum like this. Take away your ridiculous emotion and post something intelligent will you and stop calling people liars just because they have a diferent experience than you. I dont think it was nolefans intention to lie, or defraud any potential teachers who might be reading these threads..

I also do not agree with nolefan, and there are plenty of examples of teachers who have modified SAFEA contracts, our company has modified SAFEA contracts to add assurances and clearer language to both parties and my associate and I have sat in the office of the director of SAFEA reviewing the differences. We have argued during arbitration procedings and won using these modified contracts.

The courts are generally fair in contract disputes.

Everyone wants to be a self proclaimed "expert." The sooner you realize that there exists no experts the better of you'll be. There are no experts on China. Read any book worth its salt and that is the first lesson in the first chapter. Chinese law - like the development of its economy changes swiftly and has had to adapt often without convenient notice.

Most people get used to doing things one way and then have to swtch gears and do it another way, often there is a cost. A perfect example of this are the threads on the new visa regulations.. you can almost watch the new regulations matriculating into various locations across China..

Everyone is going to have a varied experience. We should celebrate that and then apply reason. Chinese law is easily available to purchase in English versions and can be found across the net.

Calling people liars and writing enormous volumes justifying ones behavior is so childish. Anyone who has ever gotten a TEFL certificate or anyone who introduces TEFL certified teachers to China, should know that part of the requirement of earning a TEFL is how one approaches and then applies constructive critisism.

Frankly, like so o o many others.. I've learned by being wrong in the past and will in the future. Its a welcome thing..

[kev7161]

It seems to me is what both sides are tring to say is that a breach penalty is one of the common items in a standard teacher's contract. However, you can talk to your school before signing and try to get them to CLARIFY what exactly constitutes a breach. This would be done in the appendix of the contract. (I too was told that the initial contract is standard around China - - it's the appendix where everything really matters.) From what I'm reading, nobody is really saying the school will simply null the clause in the appendix.

So, no, MOST schools will not remove the clause. However, a GOOD school won't mind sitting down with you and hammering out the details so you know what you are getting yourself into. Short of a dying or sick relative back home, MOST good teachers won't leave a school until the contract is over anyway, regardless of working conditions - - they'll tough it out. And MOST good schools won't dismiss a teacher unless he/she is just totally screwing up at work (constantly coming in late or hungover, for example).

So, we've said it before but do your research and ask a whole lot of questions before signing that contract. This way you can go into your new job with a little peace of mind.