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Ten Big Differences of the PRC Labor Law Are Applicable between foreign and national employees

author:James Ling Released in:2016/10/11 10:49:28 Click quantity:

Foreign employees are increasing more and more in China. So compared with our Chinese citizenship, as a foreign employee, you might mind of some different specialties when you apply China Labor Law and Contract Law.

  1, legitimate employment must go through the procedure of employment certificate application.

    Based on July 1, 2013 on the implementation of law of entry and exit administration, foreigners working in China shall, in accordance with the provisions, hold work permit and work resident paper, otherwise, will be illegal to work in China if failed to get admissible work paper by official procedure.But Chinese employees do not need to go through any official procedure for dealing with  documents, can directly establish labor relationship with employer by the agreement.  

   

    2, the employment of foreign interns has strict restrictions  

    In accordance with relevant provisions of the regulations on the administration of entry and exit of aliens, to employ foreign interns is limited to foreign students who are in campus of colleges and universities in China, and which shall be subject to consent by the school and go to the local public security organ for handling formalities of internship visa .The employing unit (employer) shall not be allowed to employ foreign students of foreign colleges and universities.

The employing unit (employer) picks and employs Chinese students as interns do not have limitations above mentioned.

  

     3. Placement of foreign employees by dispatching is prohibited

  In accordance with the regulations on foreigners employed in China, the name of employer shall be identical with the work paper indicated. Based on the above regulation, the employer is unable to employing foreign workers by through dispatching way.Under satisfaction of the corresponding provisions, the employment of Chinese may apply in the labor dispatching way.  


     4, Cross-regional part-time work is banned to foreign workers

     Foreign employees can only provide labor in the registered city and area. If need to change work place, that should go through corresponding formalities. Without the procedures of alteration, foreign employees shall not be cross-regional part-time employment.Chinese employees to cross-regional part-time without the above limitations, only the relevant parties can agree after consultations.

  

     5, employing foreigners may not apply to signing non-fixed term labor contract

  In accordance with regulations on foreigner employment, the period of labor contract to foreign employees shall not exceed five years. When the terms of signed contract expires, approved by the local labor administrative department, can deal with formalities of the renewal. Therefore in the judicial practice, the provisions on non-fixed term labor contract under article 14 of the labor contract law is unable to apply foreign employees.

  To employ Chinese should strictly abide by the provisions of article 14 of the labor contract law, enter into non-fixed term labor contract with employees who are under the satisfactory stipulations.

  

     6,  foreign workers’ insurance pension may be exempted by the bilateral agreement of China and employee’s country.According to the provision of interim measures on employment of foreigners in China to participate in social insurance pension, the foreigners who are legally employed in the domestic including direct hired and overseas dispatched shall be paid social insurance pension by the employer within the territory of China, but the payment may be exempted by the bilateral social insurance agreement signed between employee’s country with China, currently have six countries including South Korea, Germany, Finland, Canada, Denmark, Switzerland signed a bilateral agreement on exemption of social insurance.

  Chinese employee’s social insurance payment should be on the premise of establishing labor relations, and unit and employees shall not agree to exempt payment on social insurance.

   

    7, the termination conditions may be consent by foreign employee with employer in the contract in our judicial practice.

  Legitimate employment of foreign employees shall implement the labor stipulations in China, including minimum wages, working hours, rest and vacation, and social insurance, etc. as for termination conditions, the regulations stipulated by some cities allow to being autonomy of will between two parties.

  Such as the order from Shanghai higher people's court guiding to inferior courts on trial of labor dispute cases, in the protection of foreigners in the minimum wage, working hours, rest and vacation, labor safety and health and other basic labor rights, under the principle of combination of equality, voluntary, autonomy and the principle of good faith, fair and reasonable to determine other rights and obligations, including a termination condition. But the Chinese workers termination conditions had to be compulsorily with ruled by law , rather than flexibly being autonomy of will .

  

     8 foreign employees do not need to apply the stipulation on implement of China's retirement age

  Although the foreigner employment permit reviewed and examined by the relevant official department has practical standards to age limitation, but our labor law does not prohibit foreigner who is beyond  retirement age of Chinese stipulation being employed by Chinese employer. But Chinese workers reach retirement age, the employer and employee may terminate labour contract according to the regulations on the implementating the labor contract law.

  

    9,China's family planning policy cannot be executed and applied to foreign employees

  Foreign employees are not applied to population and family planning law of China, within or outside the territory of china to bearing several children, do not belong to illegal behavior, and may refer to the  provision on female worker labor protection to enjoy maternity leave of 98 days, and without being limited by the number of birth.

  In view of the foreign employees not limited by fertility number, when enjoying the  birth insurance treatment, Beijing, Guangzhou and other cities  restrict foreign employees can only receive two birth insurance treatment.

  

     10, after the employment permit being cancelled, the foreign employee can't claim recovery of labor relations

  According to Chinese law, illegal discharge the labor contract will be liable for damages or recovery of employment relationship. But in the case of the employer has cancelled the working permit, for the foreign employee, cannot apply for arbitration to restore labor relations.

  But Chinese employees, no this limit, as long as there is labor contract did not expire without other recover barriers, the employer ought to reinstate the illegally terminating  the labor relationship with employee .

 



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Email: linghuiming@yingkelawyer.com     Copyright  reserved by James Ling