All About Labour Law
On 18th July, I was invited to give a lecture by The Filipino Teachers Association. The seminar was conducted live, both online and offline. I have recorded the seminar so you guys can also learn about labour law.
Topics included:
Topics included:
Social Insurance
What To Do If Boss Does Not Pay
Labour Supervision/Inspection VS Arbitration
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1. Social Insurance
Interim Measures for Social Insurance System Coverage of Foreigners Working within the Territory of China
Article 4
The employer who hires foreigners shall process social insurance registration for the foreigners recruited and employed within 30 days from the date of its processing their employment permits.
For foreigners dispatched by their overseas employers to work at host service entities, the host service entities shall process social insurance registration on their behalf in accordance with the preceding paragraph.
The agencies processing employment permits for foreigners in accordance with the law shall pass the information related to new employment of foreigners in China on to the local social insurance agencies in a timely manner. The social insurance agencies shall enquire relevant agencies of information regarding employment permits processed for foreigners on a regular basis.
Social Insurance Law
Article 57
An employer shall, within thirty days from the date of establishment of the entity, proceed with the business license, registration certificate or entity seal to the local social insurance agency to apply for social insurance registration. The social insurance agency shall complete the check and review process and issue social insurance registration certificate to the employer within fifteen days from receipt of the application.
When there are changes in the social insurance registration items of an employer, or the entity of an employer is terminated in accordance with law, the employer shall proceed to the social insurance agency to register the changes or cancel social insurance registration within thirty days from occurrence of the changes or cancellation of the entity.
Each administrative bureau for industry and commerce, department of civil affairs and public sector reform commission shall notify the social insurance agency in a timely manner of entity establishments and terminations; each department for public security shall notify the social insurance agency in a timely manner of citizen births and deaths, and of household registrations, transfers and cancellations.
Article 97
Foreign nationals who are employed in the Chinese territory shall enroll in the social insurance system in accordance with this law.
2. Severance Pay
Severance Pay is calculated as follows: 1 year = 1 month’s pay ; 0.5-1=1 ; <0.5=0.5
Labour Contract Law
Article 46
In the case of any of the following circumstances, employers shall make an economic compensation to the workers:
(1) Any worker discharges the labor contract according to Article 38 of this Law;
(2) Any employer intends to discharge the labor contract with the workers according to Article 36 of this Law and reaches consensus with the workers through consultations;
(3) The employer discharges the labor contract pursuant to Article 40 of this Law;
(4) The employer discharges the labor contract subject to the first Paragraph of Article 41 of this Law;
(5) The labor contract is a contract with a fixed period, which is terminated in accordance with Paragraph (1) of Article 44 of this Law, except that the worker disagrees 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;
(6) The labor contract is terminated in accordance with Subparagraphs (4) and (5) of Article 44 of this Law; or
(7) Other circumstances as prescribed by laws and administrative regulations.
Article 47
The economic compensation shall be paid to workers according to the number of years he has worked for the employer by the rate of one month's salary for each full year he worked. Any period of above six months but less than one year shall be deemed as one year. The economic compensations that are paid to a worker for any period of less than six months shall be one-half of his monthly salary.
If the monthly salary of a worker is three times higher than the average monthly salary of workers as announced last year by the people's government at the municipal level directly under the central government or at the level of districted city where the entity is situated, the rate for the economic compensations paid to him shall be three times the average monthly salary of workers and may not exceed 12 years of work.
Monthly salary as mentioned in this Article means the average monthly salary of the worker for the 12 months before the discharge or termination of the labor contract thereof.
3. Release Letter and Cancellation Letter
Labour Contract Law
Article 50
When discharging or terminating a labor contract, the employer shall issue a certification for the discharge or termination of the labor contract simultaneously and shall complete the procedures for the transfer of the worker's archives and social security relationship within 15 days.
The worker shall go through the procedures for the handover of his work as stipulated between both parties. In case the employer shall pay an economic compensation to the worker as required by relevant provisions of this Law, it shall make a payment upon completion of the procedures for the handover of the work.
The text of the discharged or terminated labor contracts shall be preserved by the employer for at least two years for reference.
Article 89
Where any employer is in violation of this Law because of failing to issue a certificate in written form for the discharge or termination of a labor contract to a worker, the labor administrative department shall order it to make a correction. If any damage occurs to the worker, it shall bear the liability for compensation.
Implementation Regulations for the Labour Contract Law
Article 24
An employment contract dissolution or termination certificate issued by an employer shall bear the term of the employment contract, the date when it is dissolved or terminated, the position of the employee and the working time of the employee with this employer.
Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Labor Disputes (4)
Article 14
Foreigners and stateless persons have signed employment contracts with employers in China without obtaining employment certificates in accordance with the law, and residents of Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan who have signed labor contracts with employers in the Mainland without obtaining employment certificates in accordance with the law. In the case of a contract where the parties request confirmation of an employment relationship with the employer, the people's court will not support it.
A foreigner who holds a Foreign Expert Certificate and has obtained a Foreign Expert Work Permit in China that establishes an employment relationship with an employer in China may be considered to have a labor relationship.
4. Contract Termination
Labour Contract Law
Article 38
A worker may have the labor contract revoked if the employing unit is found in any of the following circumstances:
(1) failing to provide occupational protection or working conditions as agreed upon in the labor contract;
(2) failing to pay labor remuneration on time and in full;
(3) failing to pay the social insurance premiums for the worker in accordance with law;
(4) having rules and regulations that are at variance with laws or regulations, thereby impairing the worker’s rights and interests;
(5) invalidating the labor contract as a result of one of the circumstances specified in the first paragraph of Article 26 of this Law; or
(6) other circumstances in which a worker may have the labor contract revoked as provided for by laws or administrative regulations.
If an employing unit forces a person to work by resorting to violence, intimidation or illegal restriction of personal freedom, or if it gives instructions in violation of rules and regulations or gives peremptory orders to the worker to perform hazardous operations, which endanger his personal safety, the latter may revoke the labor contract forthwith without notifying the employing unit of the matter in advance.
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