Job Discussion Forums

[JGC458]

Hi all,

I've just been offered a SAFEA contract but the wording is pretty much completely different to the contracts I've signed in the past - and very native-like. The FAO said it's the new version. I tried to look for info on this new contract but haven't been able to find any. Is it too new, or just not a SAFEA contract/wording?

[Edit: Ok, my Chinese wife just called the SAFEA people in Shanghai, and it seems there is a "new" version. It came out in August last year, but they have been accepting the old version till now.]

I'm not too happy with:

"(3) In case either party asks to terminate this contract, it shall give a 30 day notice to the other party in writing, and the contract shall only be terminated after 30 days."

Good but also potentially bad for me!

"breach penalty of US$ 800 to 3000 or equivalent to 3 to 10 times Party B�s monthly salary in RMB"

That is just crazy!

Trouble is (for various reasons) I'm pretty certain that the FAO won't change the wording of the contract. But at least I know teachers who are employed at the uni right now who haven't had major problems. I'll just have to hope the uni doesn't suddenly want to fire me or use me as an alternative means to raise funds.

Cheers



CONTRACT OF EMPLOYMENT











Printed by
State Administration of Foreign Experts Affairs, P.R. China
(Photocopy not Accepted)






CONTRACT OF EMPLOYMENT

Employer (Party A)
Name of the Employer:
Legal Representative:
Agent ad litem:
Address:
Tel:
Fax:

Employed Foreign Experts or Professionals (Party B)
Name:
Sex:
Date of Birth:
Nationality:
ID Number:
Overseas Address:
Tel:
Fax:

I. Both parties, in line with the principles of legality, fairness, equality, mutual agreement, honesty, and trustworthiness, on a voluntary basis, and in a spirit of friendly cooperation, agree to sign this contract and pledge to fulfill all the obligations stipulated hereinafter.
II. The term of this contract shall be from to .
III. Tasks assigned to Party B (see the appendix).
IV. Party B�s monthly salary shall be RMB (before tax) Please see the appendix for terms and conditions on other remunerations and benefits concerned.
V. Party A�s Obligations:
1. Party A shall inform Party B of relevant laws and regulations of the People�s Republic of China as well as any institutions and administrative stipulations concerned with Party B�s employment as herein provided.
2. Party A shall conduct regular supervision, inspection and review of Party B�s working performance.
3. Party A shall provide Party B with necessary working and living conditions.
4. Party A shall deploy fellow staff for Party B for coordination affairs.
5. Party A shall pay Party B�s salary as scheduled.
VI. Party B�s Obligations:
1. Party B shall observe relevant laws and regulations of the People�s Republic of China and shall not interfere in China�s internal affairs.
2. Party B shall observe any institutions and administrative stipulations concerned with its employment, and shall be subject to Party A�s arrangements, supervision, inspection and review of his/her working performance. Without Party A�s consent, Party B shall not conduct any part-time job assigned by any other party.
3. Party B shall fulfill the tasks assigned to him/her with high standards within the prescribed timeframe.
4. Party B shall respect China�s religious policies, and shall not conduct any religious activities incompatible with his/her status as a foreign expert.
5. Party B shall respect Chinese people�s ethics and customs.
VII. Revision, Cancellation and Termination of the Contract:
Both parties shall abide by the contract and shall refrain from revising, canceling, or terminating the contract without mutual consent.
1. Revision of the contract. This contract can be revised with mutual consent. Before both parties have reached an agreement, the contract shall be strictly observed.
2. Cancellation of the contract. This contract can be canceled with mutual consent. Before both parties have reached an agreement, the contact shall be strictly observed.
(1) Under the following conditions, Party A shall have the right to inform Party B in writing of the cancellation of this contract:
a. Party B fails to fulfill this contract or the obligations and agreed conditions as herein stipulated, and fails to amend his/her actions after Party A has pointed it out;
b. On the basis of the physician�s diagnosis, Party B fails to resume normal work after a sick leave for a period of successive 30 days.
(2) Party B has the right to inform Party A in writing of the cancellation of this contract under the following conditions:
a. Party A fails to provide Party B with necessary working and living conditions as stipulated in this contract:
b. Party A fails to pay Party B as scheduled.
(3) In case either party asks to terminate this contract, it shall give a 30 day notice to the other party in writing, and the contract shall only be terminated after 30 days.
(4) This contract can be terminated upon mutual agreement by both parties.
3. Termination of the contract.
(1) This contract shall be terminated once it expires.
(2) This contract may be terminated with the mutual consent of both parties, and it shall be strictly observed until both parties reach an agreement otherwise.
VIII. Breach Penalty
When either party fails to fulfill any part or all of the obligations as stipulated in this contract, that is, in the event of breach of the contract, the said party shall pay a breach penalty of US$ 800 to 3000 or equivalent to 3 to 10 times Party B�s monthly salary in RMB. If both parties consider it necessary to determine an exact sum of the breach penalty, or to determine a breach penalty higher or lower than the above-mentioned amount, it shall be explicated in the appendix of this contract.
When Party B claims to cancel this contract due to force majeure, it shall produce certifying documents issued by competent authorities; after the contract is cancelled with Party A�s consent, Party B shall bear the traveling expenses thus incurred; and when Party B fails to provide any valid reason to cancel this contract, it shall bear the traveling expenses thus incurred and pay the breach penalty to Party A as stipulated in this contract.
When Party A claims to cancel this contract due to force majeure, and the contract is thus cancelled with Party B consent, it shall bear Party B�s traveling expenses thus incurred; and when Party A fails to provide any valid reason to cancel this contract, it shall bear the traveling expenses thus incurred to Party B and pay the breach penalty to Party B as stipulated in this contract.
IX. The appendix of this contract forms an indispensable part of this contract and shall have the same legal effect with the text of this contract.
X. This contract shall take effect upon being signed by both parties and shall be automatically terminated upon expiration. When either party requires signing a renewed contract, it shall forward its request to the other party 30 days prior to the expiration of this contract, and both parties shall sign the new contract through consultations and mutual consent.
Upon the expiration of this contract, Party B shall bear all the expenses incurred during his own stay in China.

XI. Settlement to Dispute
Any dispute in connection with this contract shall be first of all settled between both parties concerned through friendly consultation. In case no settlement can be reached through consultations or intermediation, both parties shall submit the said dispute for arbitration with local personnel authorities or the local labor arbitration system. In case either party refuses to accept the arbitration award, it may bring an action before the people�s court.
This contract is signed by both parties at (location) on this (date). This contract is in duplicate, each in both Chinese and English versions, and both shall take effect upon being signed at the same time.


Party A: Party B:
(Signature) (Signature)



Appendix:

[john henry]

"breach penalty of US$ 800 to 3000 or equivalent to 3 to 10 times Party B�s monthly salary in RMB"

I was surprised to see this too. I think it means if they fire you they have to pay you, but if you quit you have to pay them. Still, it's crazy...

[bendan]

The breach penalty would only apply where the 30 days written notice had not been followed.

If you are not happy with this, the contract allows for different terms to be put in the appendix.

[AlexB]

The 30 days notice reflects a clause in the new Labour Contract Law designed to improve labour mobility - employees can terminate with 30 days written notice without needing a reason. Employers however are liable to a severance payment (except in cases of contract expiration, or "major errors" by the employee), usually calculated at one month's salary per each year of work.

I don't have the exact wording of the law to hand, but I'll be trawling through it tomorrow (I'm writing my MA dissertation on it, not just bedtime reading honest) and I'll let you know if I come accross anything more precise than what I remembered there.

[bigtops]

(3) In case either party asks to terminate this contract, it shall give a 30 day notice to the other party in writing, and the contract shall only be terminated after 30 days.
(4) This contract can be terminated upon mutual agreement by both parties.

Are (3) and (4) separate items, or should I read this that Party B may ask for termination in 30 days and then be told by Party A, "no, we do not agree"?

Emailed my Foreign Affairs office to see if they're using this next year. Interesting.

[evaforsure]