Reliant on the Law: Work Permit is Proof of Labor Relationship

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One of the key points for how Chinese laws and regulations apply to “foreigners” working in China is that to enjoy labor protections, one must have a legal labor relationship. In all but a few outlying cases, to have a legal labor relationship as a foreigner working in China, one must have a Foreigner’s Work Permit (WP).

 The WP is a card with the permit holder’s picture and a QR code on the front. The WP is issued by the Foreign Experts Bureau (FEB) or equivalent institution in the locality where the permit holder is legally allowed to work. For the FEB to issue a WP, a contract, among other items, must have been submitted by the employer to the FEB, but in many cases the contract submitted to the FEB is not the same as that given to the permit holder. Even though the WP is based on a contract, the contract alone is not enough to create a legal labor relationship, only the WP is. For more on who should keep the WP card see this link.

Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases

最高人民法院关于审理劳动争议案件适用法律问题的解释（一）

http://www.court.gov.cn/fabu-xiangqing-282121.html

Article 33

For foreigners and stateless persons who have signed labor contracts with employers within the territory of the People's Republic of China without obtaining employment certificates in accordance with the law, if the parties request to confirm the existence of labor relations with the employers the court shall shall not support the request.

Foreigners who hold the "Foreign Expert Certificate" and/or who have obtained the "Foreigner's Work Permit" and who have established employment relationships with employers in the People's Republic of China can be recognized as having labor relationships.

第三十三条 

外国人、无国籍人未依法取得就业证件即与中华人民共和国境内的用人单位签订劳动合同，当事人请求确认与用人单位存在劳动关系的，人民法院不予支持。

持有《外国专家证》并取得《外国人来华工作许可证》的外国人，与中华人民共和国境内的用人单位建立用工关系的，可以认定为劳动关系。

Translation & Editing by Reliant

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