Should You Find Your Job Through An Agent?
Since the outbreak of COVID-19, I have been writing articles on labour law tailor made for expats in China. After analyzing questions from over thousands of expats, I found that a large portion of those issues arrive from agents.
Typically, an expat finds his/her job through an agent, or a headhunter, but this is where the bomb is set. They sign the labour contract directly with the agent, and the agent sends them to a school for work as a teacher.
Everything goes along fine until one day, the agent disappears along with a month of wages.
So what are the risks of signing with an agent? Should you do it?
I can most certainly tell you that the answer is NO. Never sign with the agent as you will be under legal risk for breaking quite a few laws, not to mention monetary risk of losing your salary, and also risk getting kicked out of China, getting fined, and detained.
Under Chinese labour law, this is called labour dispatchment. The labour dispatchment company hires workers for temporary, substitute and auxiliary posts. For example, a labour dispatchment company may dispatch truck drivers and cleaning workers to a construction site to drive away and clean up the mess. The time of dispatchment may not be over 6 months for one period.
Hence, as you can see, if the agent signs a contract with you and dispatches you to a school to teach, it is obviously not a temporary job as you will be teaching for at least a year. It is also not a subsitute job, nor an auxiliary post. This is obviously an abusement of the labour dispatchment system and illegal.
Moreover, agents will also coerce you into working under a holiday, marriage, or study visa, which is of course, also illegal. To get you into China, they will even give you the post of a manager, but in fact, you will be teaching. When the government finds out, there will be punishment.
Another risk, of course, is that the illegal agency will get shut down by the government, and as you have been working illegally under the wrong type of visa, this will leave you to no legal ends to getting your salary back.
Agents will also make you sign a false (yin-yang) labour contract, promising you that you will get paid the normal wage, which is say, 13000 per month, but in the contract, it will only say 5000 as they will not have to pay tax in that way. The 8000 will be given to you by Alipay, Wechat Pay, or even cash. This is tax evasion and again, illegal. They willl also skip out on your social insurance, which is mandatory for every employee in China, locals and expats alike.
However, if you are already stuck with an agent, not all hope is lost yet. Two months ago, I fought a case against a Shenzhen Agency, and I managed to prove a working relationship between the agency and the employee, and get the missing salary back.
The box in red proves that the labour arbitration committee accepted that there was a labour relationship between the agency and teacher based on a valid work permit.
Missing Salary Paid
Moreover, the expat succesfully got a cancellation and release letter from the agency, as shown in the verdict below.
I hope that after reading this article, you will heed my warning and think twice before signing a contract with an agent. Subscribe below and stay tuned for more quality content on the common traps and problems that you might face in China!
Labour Contract Law
Article 58
For the purposes of this Law, a labor-dispatching unit is an employing unit which performs the obligation of an employing unit to the workers. In the labor contract concluded between the labor-dispatching unit and the workers to be dispatched shall, in addition to the terms specified in Article 17 of this Law, be specified such terms as the units to which the workers are to be dispatched, the period of dispatch and the specific jobs.
The labor-dispatching unit shall conclude with the workers to be dispatched a fixed-term labor contract for a period of not less than two years and shall pay labor remuneration on a monthly basis. During the intervals when there is no work to do, the labor-dispatching unit shall pay labor remuneration on a monthly basis at the minimum wage rate prescribed by the people’s government of the place where the workers are working.
Article 66
Workers are dispatched generally for temporary, auxiliary or substitute jobs.
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