Article By XIANEASE
Navigating the law in any country is difficult, but it is especially difficult when much of the law is written in a language you don’t understand. Labor laws in China are no exception and understanding what exactly are your rights and responsibilities when working here can often be confusing. As such, we’ve put together a brief primer on some of the rules and regulations that are required for working in China.
Note: We are not lawyers, so everything after this point is purely informational. If you find yourself in any sort of legal trouble, then you should contact a qualified legal professional for advice.
The first document that we will look at is the 1996 Regulations on the Management of Employment of Foreigners in China, the primary document that determines employment of foreigners in China. The document has 37 different articles, but we have decided to highlight a few of them for you.
Article 7: Foreigners seeking employment in China should meet the following qualifications:
(1) having reached the age of 18 and being healthy;
(2) possessing the professional skills needed for and corresponding work experiences in the work to be taken up;
(3) free from criminal records;
(4) having specific employer units;
(5) possessing valid passports or other international travel documents that can replace passports (hereinafter referred to as passport substitutes).
These requirement are the basic standard under which foreigners may be employed. This means that those wishing to be employed in China must have relevant professional skills, including verified degrees as required, a stamped proof of no criminal record from your home jurisdiction, and a passport with validity that extends beyond the contract date.
Article 18: Employer units and the foreigners employed shall sign labour contracts in accordance with law. The term of labour contracts shall not be more than five years at the longest. Labour contracts shall terminate upon the expiration of their terms, although their can be renewed after completing procedures of examination and approval as stipulated in Article 19 of these Regulations.
Contracts that do not follow the law may be deemed as invalid contracts. While in practice most employment contracts are typically for one to two years, a contract may be signed for up to five years. Contract renewal typically is done several months before the end of a contract and at a minimum must be completed 30 days before the expiration of the contract, as seen below in Article 19.
Article 19: The certificates of employment of foreigners shall become invalid upon expiration of the labour contracts they sign with employer units. If both parties hope to prolong the contracts, the employer unit shall apply, within 30 days of the termination of the original labour contracts, to labour administrations for prolonging the employment and go through, if approved, procedures for extending the term of the certificates of employment.
Article 20: The foreigners who have prolonged their term of employment in China or changed their locations of employment or employers shall go through alteration procedures with local public security departments within 10 days of such changes.
Any time you change or renew your employment in China, you must go through the procedures again at one of the branches of the Public Security Bureau, and this must be completed within 10 days. During the renewal period, your application, which includes your passport, will be with the PSB. After renewal of your visa, you must register with your local police station once again, even if you are staying in the same apartment or working for the same employer.
Article 22: Employer units shall not pay the foreigners they employ wages lower than local minimum wage standards.
Local minimum wages will vary, depending on which city you are located in and they are typically adjusted every two years to reflect changes in cost of living. As of the end of April 2020, in Xi’an the minimum wage is 1680RMB, and that number decreases as you move away from the city.
Article 23: The working hours, rest, holidays, labour safety and sanitation, and social insurance for foreigners employed in China shall be handled in line with relevant State regulations.
All foreign employees are required to pay into the national social insurance scheme, with the exception of people from countries which have signed an agreement to waive such costs, which include Germany, Korea, Denmark, Canada, Finland, Switzerland, Holland, Spain, Luxembourg and Japan.
Working hours are determined by three different systems, which are the standard working hours system, comprehensively calculated working hours system, and the flexible working hours system. Under the standard working hours system, employees should work no more than 8 hours a day for a total of 40 hours a week, with at least one full rest day every seven days.
Overtime payment is a requirement and is calculated at 150% of normal salary for overtime on standard working days, 200% of normal salary for overtime on rest days, unless an alternative rest day can be arranged, and 300% of normal salary for time worked on a public holiday. It should be noted that, though this law exists, overtime is rarely paid out, even to local workers.
The comprehensive work hours system is typically for those in industries that require longer shifts or greater periods of work, such as those working in the transportation industry, while the flexible work hours system is for those who work in irregular jobs, such as sales personnel or taxi drivers.
Contracts may not stipulate work hour rules that are in violation of these rules.
Annual leave is calculated as follows; employees who have worked for more than one but less than ten years are entitled to five working days of leave per year; employees who have worked for more than ten years but less than twenty years are entitled to ten working days of annual leave per year; and employees that have worked for more than twenty years are entitled to fifteen days of annual leave per year. Importantly, these years are cumulative regardless of your employer, meaning that if you have worked for one company for seven years and another company for three years, you should have ten days annual leave per year. In addition to annual leave, there are eleven public holiday days that are not included in the statutory annual leave.
Article 24: The employer units with which the foreigners work in China shall be same and one as specified in the certificates of employment.
The foreigners who change their employers within the location designed by the certificate issuing departments but still engage in the same occupation shall ask for approval from the original certificate issuing departments and go through employment alteration procedures.
The foreigners who get jobs beyond the area designated by the certificates issuing departments or change their employer within the area designated by the certificate issuing departments but engage in different occupations shall go through procedures for employment permission anew.
This section covers a few basic requirements for the place that you work, namely, that the address of the place that you work must match the same address on the work permits that you are issued. This means, for example, that your employer can not have you work at a separate location, or rent out your services to a third party.
This section also states that when you change employers, but stay within the same career track and in the same city, you can renew with minimal effort, but if you are changing to a different career or moving to another city, you will need to restart the whole process.