Job Discussion Forums

[Lobster]

The New Labour Contract Laws that came into effect on January 1st, 2008 are applicable to all workers in China. That includes FTs. It would do all current and prospective teachers good to aquaint themselves with the new regulations. These regulations include things of interest such as:

Probationary periods
Retention of Documents
Severance pay
Length and type of contracts
Good faith and transparency in contract negotiations
Breach penalties
Location of worksites
Outside work (non-competition)
Social Benefits requirements
Pay periods

Some short forms and thoughts:
http://english.talent-software.com/?p=348

More here:
http://www.chinasuccessstories.com/2007/12/18/new-labor-law-china/

Pay site resource:
http://www.china4u2.com/Dispatch/Teach_English_in_China_Manual/teach_english_in_china_manual.html

The Official Site in PDF format
http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1026&context=intl

Know your rights! Protect yourself!

PS. This is not a thread for arguing about the enforcement possibilities of the regulations, so please don't take it in that direction. If you have any comments or valuable insights about the regulations' applicability to FTs, please post on this thread. Sticky?

RED

[Lobster]

I'm going to bump this a couple of times.

RED

[Anda]

Teach English in China ManualAs a teacher in China YOU MUST KNOW YOUR RIGHTS AND OBLIGATIONS. 370 pages of factual, unbiased, ... Signing a China Employment Contract Before You Arrive ...
www.china4u2.com/Dispatch/Teach_English_in_China_Manual/teach_english_in_china_manual.html - 75k -

[englishgibson]

don't knwo what direction i'm gona take it with this post, and with little time to go through all of that ambiguous chEnglish, but...

[Lobster]

I've already got that link in my post Anda. Have you read the manual? Can you comment on it, good or bad?

EG, what I get from this (not having plowed through all the Chinglish myself yet) is that although it was primarily directed at stopping employers from keeping their Chinese workers' ID cards, it also means no more holding passports or FECs as "insurance". Also, no "deposits" or holding back of wages is allowed. There's also something about pay periods in there. Give me a couple of days to get through it and I'll post some details that I feel are particularly relevant to FTs.

RED

[englishgibson]

i see

thanx lobster

cheers and beers

[Lobster]

They appear to be one and the same.

Here are a few provisions. This is a very long post, so make sure you have lots of coffee and cigs or whatever keeps you going.

Italics mine.

Chap. 2

Article 8. When an Employer hires a worker, it shall truthfully inform him as to the content of the work, the working conditions, the place of work, occupational hazards, production safety conditions, labor
compensation and other matters which the worker requests to be informed about. The Employer has the right to learn from the worker basic information which directly relates to the employment contract,
and the worker shall truthfully provide the same.

This would relate to the practice of "farming out" without notice

Article 9. When hiring a worker, an Employer may not require him to provide security or collect property from the worker under some other guise, nor may it retain the worker�s resident ID card or other papers.

This would apply to passports, PSB registry papers and FECs

Article 12. The terms of employment contracts are divided into three types: fixed terms, open‐ended terms and terms to expire upon completion of a certain job.

Article 13. A �fixed‐term employment contract� is an employment contract whose ending date is agreed upon by the Employer and the worker. An Employer and a worker may conclude a fixed‐term employment contract upon reaching a negotiated consensus.

This applies to most one or two-year FT contracts.

Article 15. An �employment contract with a term to expire upon completion of a certain job� is an employment contract in which the Employer and the worker have agreed that the completion of a
certain job is the term of the contract. An Employer and a worker may, upon reaching a negotiated consensus, conclude an employment contract with a term to expire upon completion of a certain job.

This would apply to short-term projects and summer/winter camps etc.

Article 19. If an employment contract has a term of not less than three months but less than one year, the probation period may not exceed one month; if an employment contract has a term of more than one year and less than three years, the probation period may not exceed two months; and if an employment contract has a term of not less than three years or is open‐ended, the probation period may not exceed six months. An Employer may stipulate only one probation period with any given
worker. No probation period may be specified in an employment contract with a term to expire upon completion of a certain job or an employment contract with a term of less than three months. If an employment contract provides for a probation period only or if the term of the probation period is the same as that of the employment contract, then there is no probation period and the term concerned shall be the term of the employment contract.

The probation pay rate cannot be less than 80% of the final pay rate.

Article 23. An Employer and a worker may include in their employment contract provisions on matters relating to maintaining the confidentiality of the trade secrets of the Employer. If a worker has the obligation to maintain the confidentiality of his Employer�s trade secrets, the Employer may agree with the worker on competition restriction provisions in the employment contract or confidentiality agreement, and stipulate that the Employer shall pay financial compensation to the worker on a
monthly basis during the term of the competition restriction after the termination or ending of the employment contract. If the worker breaches the competition restriction provisions, he shall pay liquidated damages to the Employer as stipulated.

Article 24. The personnel subject to competition restrictions shall be limited to the Employer�s senior management, senior technicians and other personnel who have knowledge of trade secrets of the
Employer. The scope, territory and term of the competition restrictions shall be agreed upon by the Employer and the worker, and such agreement shall not violate laws and regulations. The term, counted
from the termination or ending of the employment contract, for which a person as mentioned in the preceding paragraph is subject to restrictions in terms of his working for a competing Employer that produces the same type of products or is engaged in the same type of business as his current Employer, or in terms of his establishing his own business to produce products or engage in business competing with his current Employer�s products or business, shall not exceed two years.

This does not mean that an employer cannot say an FT can't do outside work. It only applies after a contract has been concluded. Not too applicable to most of us.

Chap. 3

Article 31. Employers shall strictly implement the work quota standards and may not compel or in a disguised manner compel workers to work overtime. If an Employer arranges for a worker to work overtime, it shall pay him overtime pay in accordance with the relevant state regulations.

No forced overtime for any reason!

Article 37. A worker may terminate his employment contract upon 30 days� prior written notice to his Employer. During his probation period, a worker may terminate his employment contract by giving notice to his Employer.

Article 38. In any of the following circumstances, a worker may terminate his employment contract by giving notice to his Employer at any time:
(1) the Employer fails to provide the labor protection or working conditions specified in the employment contract;
(2) the Employer fails to pay labor compensation in full and on time;
(3) the Employer fails to pay the social insurance premiums for the worker in accordance with the law;
(4) the rules and regulations of the Employer violate laws or regulations, thereby harming the worker�s rights and interests;
(5) the Employer used such means as deception or coercion, or took advantage of the other party�s difficulties to cause him to conclude or amend the employment contract contrary to his true intent;
(6) other circumstances specified in laws or administrative statutes.

If an Employer uses violence, threats or unlawful restriction of personal freedom to compel a worker to work, or if a worker is instructed in violation of rules and regulations or peremptorily ordered by his
Employer to perform dangerous operations which threaten his personal safety, the worker may terminate his employment contract forthwith without giving prior notice to the Employer.

Article 39. An Employer may terminate an employment contract if the worker:
(1) is proved during the probation period not to satisfy the conditions for employment;
(2) materially breaches the Employer�s rules and regulations;
(3) commits serious dereliction of duty or practices graft, causing substantial damage to the Employer�s interests;
(4) has additionally established an employment relationship with another Employer which materially affects the completion of his tasks with the first‐mentioned Employer, or he refuses to rectify the matter after the same is brought to his attention by the Employer;
(5) the employment contract is invalid due to the circumstance specified in the first paragraph of Article 26 hereof; or
(6) has his criminal liability pursued in accordance with the law.

Article 40. An Employer may terminate an employment contract by giving the worker himself 30 days� prior written notice, or one month�s wage in lieu of notice, if:
(1) after the set period of medical care for an illness or non‐work related injury, the worker is incapable of engaging in his original work and fails to reach agreement with the Employer on the amendment of his employment contract;
(2) the worker is incompetent and remains incompetent after training or adjustment of his position; or
(3) a major change in the objective circumstances relied upon at the time of conclusion of the employment contract renders it unperformable and, after consultations, the Employer and worker are unable to reach agreement on amending the employment contract.

Article 46. In any of the following circumstances, the Employer shall pay the worker severance pay:
(1) the employment contract is terminated by the worker pursuant to Article 38 hereof;
(2) the employment contract is terminated by the Employer pursuant to Article 40 hereof;
(3) the employment contract is terminated by the Employer pursuant to the first paragraph of Article 41 hereof; major restructuring or mass layoff
(4) the employment contract is terminated after such termination was proposed to the worker by the Employer and the parties reached a consensus thereon;
(5) the employment contract is a fixed�term contract that ends pursuant to item (1) of Article 44 hereof, unless the worker does not agree to renew the contract even though the conditions offered by the Employer are the same as or better than those stipulated in the current contract;
or
(6) the employment contract ends pursuant to item (4) or (5) of Article 44 hereof.

Article 47. A worker shall be paid severance pay based on the number of years worked with the Employer at the rate of one month�s wage for each full year worked. Any period of less than one year shall be counted as one year...For the purposes of this Article, the term �monthly wage� means the worker�s average monthly wage for the 12 months prior to the termination or ending of his employment contract.

Article 48. If an Employer terminates or ends an employment contract in violation of this Law and the worker demands continued performance of such contract, the Employer shall continue performing the same. If the worker does not demand continued performance of the employment contract or if continued performance of the employment contract has become impossible, the Employer shall pay damages to the worker at twice the rate of the severance pay provided for in Article 47 hereof. The
employment contract shall be terminated or end upon the Employer�s payment of such damages.

The following sections relate directly to the obligations of recruiters.

Article 58. Staffing firms are Employers as mentioned in Article 2 hereof and shall perform an Employer�s obligations toward its workers. The employment contract between a staffing firm and a worker to be
placed shall, in addition to the matters specified in Article 17 hereof, specify matters such as the unit with which the worker will be placed, the term of his placement, his position, etc. The employment contracts between staffing firms and the workers to be placed shall be fixed term
employment contracts with a term of not less than two years. Staffing firms shall pay labor compensation on a monthly basis. The labor compensation paid by staffing firms for periods during which there is no work may not be lower than the minimum wage rate in the place where the staffing firm is located.

Article 60. Staffing firms have the obligation to inform the workers placed of the relevant content of the placement agreements. Staffing firms may not pocket part of the labor compensation that the Accepting Units pay to the workers in accordance with the placement agreement. Staffing firms and the Accepting Units may not charge fees from the workers placed.

So much for the recruiters' monthly milking of the cash cow.

Chap. 7

Article 80. If a labor rule or regulation formulated by an Employer violates laws or administrative statutes, such rule or regulation shall be invalid and the labor administration authority shall order rectification and give a warning. If the said rule or regulation caused a worker to suffer harm, the Employer will be liable for damages.

Article 84. If an Employer violates this Law by retaining a worker�s ID card or other papers, the public security authority shall order the same returned to the worker within a specified period of time and may
impose a penalty in accordance with the provisions of relevant laws.

Article 85. If an Employer violates this Law by requiring workers to provide security or demanding property from workers, the labor administration authority shall order the same returned to the workers
within a specified period of time and impose a fine on the Employer of not less than RMB�500 and not more than RMB�2,000 for each worker; if the workers suffered harm as a result of the said conduct on the part of the Employer, the Employer will be liable for damages.

If an Employer retains a worker�s file or other article after the worker has terminated or ended his employment contract in accordance with the law, a penalty shall be imposed in accordance with the preceding paragraph.

Article 86. If an Employer:
(1) fails to pay a worker labor compensation as stipulated in his employment contract or provided for in this Law;
(2) pays labor compensation below the local minimum wage rate;
(3) arranges overtime without paying overtime pay; or
(4) terminates or ends an employment contract without paying the worker severance pay pursuant to this Law; then the labor administration authority shall order it to pay the labor compensation, overtime pay or severance pay within a specified period of time; if the labor
compensation is lower than the local minimum wage rate, the Employer shall pay the shortfall. If payment is not made within the time limit, the Employer shall be ordered to additionally pay damages to the worker at a rate of not less than 50 percent and not more than 100 percent of the amount payable.

Article 87. If an employment contract that has been concluded is confirmed as being invalid in accordance with Article 26 hereof, the labor administration authority may impose a fine of not less than
RMB�500 and not more than RMB�20,000; if the other party suffers harm as a result of the invalidity, the party at fault shall be liable for damages.

Article 89. If an Employer:
(1) uses violence, threats or unlawful restriction of personal freedom to compel a worker to work;
(2) instructs in violation of rules and regulations, or peremptorily orders, a worker to perform dangerous operations which threaten his personal safety;
(3) insults, corporally punishes, beats, illegally searches or detains a worker; or
(4) provides odious working conditions or a severely polluted environment, resulting in serious harm to the physical or mental health of workers; and such conduct constitutes a criminal offense, criminal liability shall be pursued according to law; if the said conduct constitutes a law
and order violation, administrative sanctions shall be imposed according to law; if the worker suffers harm as a result of the said conduct on the part of the Employer, the Employer will be liable for damages.

Article 90. If an Employer fails to issue to a worker a certificate evidencing the termination or ending of his employment contract as required in the first paragraph of Article 50 hereof, the labor administration authority shall order rectification. If the worker suffers harm as a result of such failure, the Employer will be liable for damages.

OK, those are the most interesting points. Please take some time to read through the entire document to get the ideas in context. Happy negotiating!

RED

[englishgibson]

Lobster, you're such a hard working soul.

Cheers and beers to our negotiating skills with Ch-employers

[Lobster]

Every negotiation that leads to better conditions and pay benefits us all.

Every time someone insists that the employer follow the rules, it benefits us all.

Anything that reduces the amount of crap that employers and recruiters throw benefits us all.

Work hard to protect our interests and improve our lives comrades! Align individual and collective rights. Strive for harmonious working conditions!



RED

Cheers and beers to labour rights and those who fight for them!

[arioch36]

Lobster

[Lobster]

From what I can tell from perusing the SAFEA site, your work unit is not responsible for providing insurance. SAFEA suggests you buy your own. However, many places are willing to include the FT on the company plan. It's up for negotiation. There's no mention of it in the Contract Labour Law.

RED

[Lobster]

Last bump for this post.

RED

[englishgibson]

[arioch36]

[Lobster]

Let's take a closer look:

Article 44. An employment contract shall end if:
(1) its term expires;
(2) the worker has commenced drawing his basic old age insurance pension in accordance with
the law;
(3) the worker dies, or is declared dead or missing by a People�s Court;
(4) the Employer is declared bankrupt;
(5) the Employer is dissolved, has its business license revoked or is ordered to close down in
accordance with the law; or
(6) another circumstance specified in laws or administrative statutes arises.

Followed by:

Article 46. In any of the following circumstances, the Employer shall pay the worker severance pay:
(1) the employment contract is terminated by the worker pursuant to Article 38 hereof; (the worker quits)
(2) the employment contract is terminated by the Employer pursuant to Article 40 hereof; (worker illness, incompetence, or severe change in the employer's business)
(3) the employment contract is terminated by the Employer pursuant to the first paragraph of Article 41 hereof; (reduction of workforce)
(4) the employment contract is terminated after such termination was proposed to the worker by the Employer and the parties reached a consensus thereon; (you agree to get shafted)
(5) the employment contract is a fixed�term contract that ends pursuant to item (1) of Article 44 hereof, unless the worker does not agree to renew the contract even though the conditions offered by the Employer are the same as or better than those stipulated in the current contract; (you must agree to accept a contract of equal value)
or
(6) the employment contract ends pursuant to item (4) or (5) of Article 44 hereof. (employer is bankrupt or has business license revoked)

Item (5) is indeed the one that would prevent most FTs from getting severance pay unless the employer doesn't have the presence of mind to offer a new contract. Note, however, that SAFEA regulations specify that parties must make their intent to offer or desire a new contract 90 days before the expiration of their current contract. Therefore, I would take it that, as is common here, if the employer hasn't offered a new contract 90 days before the old one runs out and the teacher therefore has reason to believe that none will be offered, that teacher should be eligible for severance pay. In fact, that may not be the interpretion of the adjudicating body, which may accept a contract offered at any time after expiration of the current contract as valid for the purposes as set out in Item (5).

RED