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Labour Law in China

In: Business and Management

Submitted By omatai
Words 733
Pages 3
In China there exist labor laws which, if fully enforced, would greatly alleviate common abuses such as not paying workers. In 2006, a new labor law was proposed and submitted for public comment. Enacted in 2008, the Labor Contract Law of the People's Republic of China permits collective bargaining in a form analogous to that standard in Western economies, although the only legal unions would continue to be those affiliated with the All-China Federation of Trade Unions, the Communist Party’s official union organization. The new law has support from labor activists, but was opposed by some foreign corporations, including the American Chamber of Commerce and the European Chamber of Commerce. There is some expectation that the law would be enforced.[4][5][6] In 2010 a substantial increase in labor related cases brought to court in 2008 was reported.[7] There has been many questions as to "Does the Labor Contract Law Cover Foreigners". There has recently been a case in Jinhua China (2011–2012), where a foreigner went through Labor Arbitration, Court and Court of Appeal. The case centered around Article 14 part 3 of the Labor Contract Law. During all the proceeding the Chinese argued that LAW did NOT apply to foreigners. The foreigner easily proved his case yet lost in all 3 venues. Both written court decisions cited that the foreigner did not meet the rule of Art 14 part 2 (which was NEVER argued by anyone in court(s)) and therefore the courts ruled against the foreigner. It is possible that this is an incident of some kind of court corruption but as of now this ruling and the far reaching international legal precedents that it sets remain in effect.

Reading from Documents of this case. Translation of the Arbitration Decision....

"This court thinks this case is a contract dispute about a foreigner who wants to obtain employment in china, the focus is about how to use Chinese law. The applicant thinks he has a working VISA and ‘foreign expert certificate’, that is his legal evidence to work in china, his working relationship with the respondent should apply to article 14.2’s rules of ‘the labor contract law of PRC.’ The respondent should sign an open-ended labor contract with him. This court thinks, ‘ the labor contract law of PRC.’ is a law that set to sign a labor contract, ‘the foreign experts employing contract management rules’ is a rule to the foreign expert who is working in China, these two law are all legal basis for foreign who works in china, and the latter was enacted after the former, it is clear, our country adopt specific rule different from its own citizens on the management issues with foreign experts, this case adopt ‘the foreign experts employing contract management rules’. This rule set: signing a foreign expert employment contract, should follow the principles of legal, fair, equality freewill, consensus and good faith. The article 4 of the rule set: the contract will automatically expired after the contract is finished. So, this court think, in this case the contract had already expired on 30th June 2011 which sign by both parties, and the respondent is not willing to resign again, this contract shall be terminated. The applicant ask for an open-ended contract with the respondent lack legal basis, this court will not support."

This decision shows a clear infringement on the rights of foreigners. It also makes use of a "rule" which is not issued by the State Council as "reason" to take away the rights of foreigners to the LCL. It is very clear in this decision that the worker is “legal” and has all the correct papers for employment at the time in question. A very critical issue is that it gives “right “ to the employer to decide not to enter into an open-ended contract even though the law is clearly written to allow the employee to be granted an open-ended contract if any of the conditions are met in Art 14 parts 1 -3 . If this way around the law stands it can now be used against both Foreigner and Chinese workers. Basically it is as if the courts in small town Jinhua China have in a single stroke nullified the Labor Contract Law that took over 10 years to create in a single stroke and have done this without direction from Beijing

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