Job Discussion Forums

[bearcanada]

We have a contract discussion going on another thread but it's going to bog down and I wanted to extract a few important points to obtain more information. If any of you can help with personal knowledge or from personal experience, please contribute. We need some hard facts here.

1) Nolefan has implied rather strongly in some posts that a SAFEA contract CANNOT be amended - that you must sign it as presented. In particular, we were discussing the penalty clause and he says there is no way to avoid it (except with private institutions using a different contract).

I have received emails from teachers telling me they have been successful in obtaining as many as 7 or 8 significant amendments to this contract, including removal of the penalty clause and immediate payment of airfare. I believe these to be true, and would appreciate hearing from anyone who has some personal knowledge.

Does anyone out there know for absolute certain that a SAFEA contract CANNOT be amended? Have any of you ever obtained an amendment (of any kind) to this contract?

2) Nolefan also says: <Quote>....... the breach of contract clause is standard in a contract as far as Chinese customs/businesses go.<Endquote>
Since we were speaking of employment, this is strongly implying that to obtain any kind of employment in China, one must sign a contract agreeing to a penalty clause. I find this impossible to believe and would like to know if anyone has personal, firm knowledge of this matter. Penalty clauses are typically used in business contracts requiring performance guarantees, like a factory producing products for Sears "in time for Christmas". In my experience, they are almost never used in an employment context.

Does anyone know for certain if in fact employees generally must agree to a penalty clause for any kind of job in China?

3) Middy made a point somewhere that of the Chinese and English versions of a teaching 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?

If you can contribute hard facts from personal experience here, please do so. These are important points and we need the correct information.


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)

[monju]

It states unambiguously in my SAFEA contract in both the Chinese and the English sections that both versions are equally valid.

The college I'm working for hasn't altered the contract but have added an appendix to screw me out of accomodation etc. Whether they are allowed to do this or not is a moot point - they have done it to me and to other teachers in the past and will probably keep doing it.

I imagine the penalty clause was written in to the contract to stop people just quitting when they get sick of all the abuse one gets in China.

I would be interested to know the facts about whether the contract can be legally amended or not, too.

Come on you legal brains and enlighten us!

[bearcanada]

Just as a point of interest, monju, when the school added the appendix on the accommodations, did you have to sign the appendix, or did they just do it and present it to you ? Were you given a chance to agree or disagree?


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)

[Roger]

I have signed well over a dozen "contracts" in China (not all were full-time or long-term employment situations!), and a penalty clause was, if I remember correctly, included in each and every single one of them. It seldom bothered me.
As for a SAFEA contract, I guess these are the trendsetters in China and as such far less amenable to modifications.
However, my GUIDE TO EMPLOYMENT... has a sample contract (including a penalty clause), as well as various regulations governing your conduct if you terminate your job prematurely, fall foul of the house rules or get dismissed. A penalty is clearly the norm and favoured by China's employers and legislators. In fact, Chinese themselves get penalised routinely when they jump boat. In their case, the bosses have far more discretionary powers and can withhold up to the whole monthly pay - there seldom is any stipulation in their agrements (or "contracts", whatever you choose to call these worthless papers!). This may be part of the reason why CHinese employees show such a lackadaisical loyalty to their employers, hopping jobs as though they were changing underwear (sometimes).

However, I don't doubt some employers are willing to add special provisions to SAFEA contracts; amendments are tolerated and will be respected by courts if signed by both parties.

But I query the veracity of bearcanada's claim that "several EFL teachers..." informed him they got a waiver of their penalty clause; I am not doubting bearcanada's credibility, but he ought to double-check to see whether these EFL teachers had a LEGAL job rather than being hired informally (work visa and resident's permit to boot).
If you get employed on a tourist or business visa without legal sponsorship by your employer then he can hardly prosecute you for neglecting your duties. You lose your airfare if you were even so lucky as to be promised one. You could lose it even if you broke no rules.
I had two jobs terminated prematurely by my employers (and totally unfairly so); however, since I was their legal liability they paid me all dues specified in my contracts.

[bearcanada]

Roger, you raised a good point. I have not myself seen these amended contracts. But I was in constant correspondence with several teachers while they went through their negotiations, and they did confirm their success in achieving the amendments they wanted - specifically the removal of the penalty clause and the payment of airfare up front.

I know that these were standard SAFEA contracts and that the Z visas were to be arranged. I have every reason to believe these were legal jobs in the regular school system. I know they were not with private schools. Beyond that, I didn't collect any more information. And the teachers didn't think it important to specify whether the changes were made to the main body of the contract or were put into the appendix.

Do you happen to know for certain if changes are ever put into the main body of the contract or if they are always done in the appendix?


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)

[Spiderman Too]

Can you convert an 'L' visa to a 'Z' visa (or the new equivalent in-passport FRP)? It depends on what province you are in.

Can you convert 30% or 70% of your salary into foreign currency? It depends on what province you are in. And, as I have mentioned before, currently I can convert 100% of my salary; previously I was certain the legal limit was 70%.

So, can you amend a SAFEA contract? It depends on what province you are in.

Here is my true story from last year;

I joined a university in Chongqing which had been employing foreigners for the past 5 years. This university did things by the book. They obtained and issued the correct (2) documents so that each of the 5 new teachers could obtain a 'Z' visa before coming to China.

They used their own contract, which was quite a reasonable wording. They told me it had been written, and amended several times, with the help of foreign teachers.

The 5 new foreign teachers, including myself, each signed a contract and the FAO went to the State Bureau of Foreign Experts Affairs to submit the contracts as part of the process of obtaining FRPs, as they had done in previous years. However, the SBFEA refused to accept the contracts and told the university that foreign teachers MUST sign SAFEA contracts.

The SBFEA told the university that the SAFEA contract could not be amended but university's contract could be appended to the SAFEA contract.

Incidentally, the SAFEA contract was a pre-printed booklet written in both English and Chinese, which contains the subject penalty clause (US$500 to US$2,000) and also the clause "The appendix of this contract is an inseparable part of the contract and has equal effect." The university's original contract specified a 4,000 RMB penalty.

So we all signed the SAFEA contract with the university's contract as an appendix.

This (school) year I am teaching at a university in Guangdong and they used their own contract. My current contract also has a 4,000 RMB penalty clause BUT it applies pro-rata;

completing less than 20% of the contract = 100% penalty
completing 20 to 49% of the contract = 60% penalty
completing 50 to 79% of the contract = 30% penalty
completing 80 to 99% of the contract = 10% penalty

So, it would seem that in Chongqing the SAFEA contract must be used without amendment but appendices are acceptable. In Guangdong it would seem that any contract wording is accepted by the State Bureau of Foreign Experts Affairs.

[Spiderman Too]

I should have also explained that the SAFEA contract, at least the pre-printed booklet that I signed last (school) year which has SAFEA Contract on the front cover, has spaces for; start date, finish date and monthly salary to be written in. But it makes no reference whatsoever to; number of lessons to be taught, accommodation, airfares, medical insurance, etc. I can't imagine the SAFEA contract being used without an appendix. Oh, it does contain an arbitration clause requiring disputes to be referred to the State Bureau of Foreign Experts.

[bearcanada]

Spiderman Too, would you like to copy your post and re-enter it in the
Sticky: [ Poll ] Contract Questions thread? Your information was really useful and it might help people to read your comments directly. I will enter a brief post there on a couple of things we learned, but entering your full post would be helpful. Thanks.


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)

[monju]

Bearcanada,

Yes I did have to sign the appendix, in fact as with the main body of the contract there's an English version and a Chinese version. In addition, the appendix states that it has the same authority as the main body of the contract.

I didn't have the chance to disagree, but that is more to do with this college's attitude than anything else - theoretically it was negotiable. Signing was largely influenced by personal factors and in retrospect was a huge mistake.

If there was a crying emoticon available, I would put it here!

[bearcanada]

I sympathise, monju. It's not easy to know what to do or how to handle something when another party is dealing from strength. And it's especially difficult in a foreign country where one can be at a huge disadvantage.

We've all done it one way or another. Don't beat yourself on the head with a stick. You can't blame yourself for doing the best you could.

Is there any chance of renegotiating? It sounds like you really got the short end of a deal, and the school must know that. What would happen if you spoke to them about it? Could it make things worse? Would you have anything to lose? Is there a chance they will think they can impose other unfair obligations on you?


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)

[monju]

Thanks for your sympathy bearcanada.

I've only got a couple more months left on the contract so I guess I'll just stick it out. The college won't budge on anything, I and another teacher have both tried to negotiate better conditions - without success.

After all the shoddy treatment they've subjected me to, they even had the gall to ask me to stay! How's that for funny?

This is my second stint in China and I've had a really bad run. I think it's time to go home for a while.

I'm really kicking myself for taking this job; I'm actually helping to prop up their crazy system. I'm not helping any of the poor, unsuspecting foreign teachers who might come here and get sucked in either - this college is just going to keep doing this because people like me are foolish enough to sign their contract.

[clark.w.griswald]

Bearcanada why don't you just contact SAFEA directly and get an answer to your question? That is what I would do if I were you.

[Babala]

I am not trying to nasty but...

Of course a school is not going to be willing to re-negotiate AFTER you sign. If you weren't happy with the contract, you shouldn't have signed it. If you can't stand up for yourself and allow a school to bully you into signing something you don't agree with then you have to accept your fate.

[monju]

Babala, yes you're partly right: I've made my bed and blah blah blah.

However, if you'd read my earlier post, you would have seen that my reasons for signing the contract were largely personal. The situation is much more complicated than I have indicated - as life often is!

Unfortunately things didn't work out and I got trapped here. I wasn't exactly bullied.

Being a rather private person, I don't feel I need to go into details.

If you've ever read the standard SAFEA contract, you'll know that it does have a clause allowing for re-negotiation. I don't think it's totally far-fetched to consider the possibility of the college re-negotiating, especially after claiming to be very happy with me.

I think the things that bug me most are the lack of respect and the arrogance from certain quarters here. A little bit of professionalism on the part of my Chinese colleagues would also have gone a long way to making me feel better. Anyway, I discovered that their shoddy contract can be used against them too, so I made them look in the mirror today - I wasn't trying to be nasty but...

Well, to sum it up: Yes Babala, you're right, and yes I am a bit of an idiot, and yes I shouldn't really complain.
Thank you for your help!

[cj750]

The Chinese often talk turkey on points of a contract after signing...no matter what the con tract sez..court procedure and court law does not match up with the requirements of contract law..for example..hearsay and verbal changes can be offered into proceedings as evidence...the contract is not the final word...and again how many people have been subjected to this clause...and how do they enforce it...