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Author Topic: Starting today, illegal foreign workers no longer have legal rights in China.  (Read 3259 times)

BrandeX

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Via China Daily:

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As of Feb 1, courts will not protect the labor rights of foreigners working without a work permit, according to an interpretation of labor laws released by the Supreme People's Court, China's top court, on Thursday.

Foreigners without a work permit, even if they are under an employment contract, will not have their "labor relationship" with employers recognized by the court, according to the interpretation.

Foreigners who possess an expert certificate - a license issued by the government to some foreign workers with expertise in their fields - and obtain a work permit designed for foreign experts and are employed in China will benefit from the courts' recognition of their "labor relationship" with employers, read the judicial interpretation.

"Labor relationship" is a legal term, which covers labor rights including social insurance and compensation for work injuries.

As China has deepened its opening-up, an increasing number of foreigners are working in China, and labor disputes involving foreign workers are also on the rise, according to the top court.

Foreigners who do not obtain a work permit are not qualified laborers so they cannot establish labor relations with employers, according to the top court.

Jiang Ying, a labor law professor at the China Institute of Industrial Relations, said labor laws have stated that for a foreigner to work legally in China, they must have a work permit, and the top court's interpretation supports a message of protecting foreigners' legitimate rights when labor disputes occur.

A work visa is a premise to apply for a work permit, according to Chinese laws.

"As China develops, many foreigners come to work without undertaking legal procedures," she said, "That will greatly affect China's job market."

Jiang said her study found many foreigners working in language training institutions do not have a work permit.

"The interpretation would make it harder for foreigners working without a permit to seek protection of their rights because the court will not recognize their labor relationship with employers," she said, "So it would, to some extent, hamper the enthusiasm of foreigners who want to seek illegal employment in China."

However, the interpretation has erased a clause that was in the draft of the interpretation that had been available for public comment. Foreigners who have worked for an employer can get their pay according to their contract, the erased clause read.

A labor rights lawyer, who gave his name as Wang, said the omission of the clause does not mean that foreigners will have less chance of winning a labor dispute.

Companies have to pay the wages if the foreigners have worked for them, regardless of whether they have a work permit or not, as long as they have signed a labor contract, he said.

"But foreigners without a work permit do not have the protection of the 'labor relationship' with the employer in the courts. That means the court may not recognize their labor rights including social insurance, healthcare, compensation for work injury and double pay for overtime."

ericthered

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At least that's a law I can understand and accept. If you work illegally, you are not covered by the law. Makes sense to me.
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The Local Dialect

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Yeah I sort of always figured this was the case, or, if it wasn't, that it should be.

Escaped Lunatic

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As long as they slap the employer with a big fat fine for hiring someone illegally, I think it sounds fair all around.
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BrandeX

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THAT.... doesn't appear to be in the comments /facepalm

ericthered

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Well..errmmm...that won't happen. Difference between people employing laowai illegally and laowai being employed illegally would be that the former has guanxi and nepotism (Uncle Higg Muckamuck in Government) to their advantage and laowai has...tumtitum...nothing to their advantage.
"Anyone who lives within their means suffers from a lack of imagination." Oscar Wilde.

"It's all oojah cum spiffy". Bertie Wooster.
"The stars are God's daisy chain" Madeleine Bassett.

latefordinner

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exactly, etr. employer may have to fatten up a hongbao or three, but that isn't a fine, its a cost of doing business.

ericthered

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Yeah, true, so basically SNAFU. I would not expect any legislation about illegal employees in China to be directed against the native population. That would be contrary to norm.
"Anyone who lives within their means suffers from a lack of imagination." Oscar Wilde.

"It's all oojah cum spiffy". Bertie Wooster.
"The stars are God's daisy chain" Madeleine Bassett.

The Local Dialect

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Yeah, true, so basically SNAFU. I would not expect any legislation about illegal employees in China to be directed against the native population. That would be contrary to norm.

Well, to be fair, the legislation targets both equally. Schools can be, and have been, heavily fined for employing people illegally. The laws that are actually on the books do not say "foreigners get fined and deported, schools get told they have been very very naughty." The schools are supposed to be punished.

While hong bao work in many situations, in larger places the chances of a rogue school being able to get out of paying a fine are a lot slimmer. For instance, there are thousands upon thousands of illegal mom and pop schools in Beijing and most of them wouldn't even know where to start with the bribes. You can't just show up at the police station with a hong bao, it doesn't work that way, you have to have an in, especially if you're a relative nobody -- and lots of small school owners are (I should know, I used to be one. We tried to cultivate guanxi with a local PSB guy and while he was able to help out a bit with some visa stuff for a few of our teachers, but would have been pretty useless in a real shit has hit the fan situation). And even when you can call in a favor, sometimes the connections of the person doing the reporting trump the connections of the school. And, theoretically, a well connected foreigner could also get a slap on the wrist and nothing more if he called in favors with the right people. The system isn't set up specifically to punish foreigners and let locals go scot free, locals are just more adept at abusing the system.

It is true that your New Orientals and your EFs are probably not going to have to worry. But schools with decent enough connections and enough financial solvency generally can also get permission to hire foreigners legally. It actually is not really all that difficult. Your school can't get it if they are brand new though, and lots of little startup schools never make it past the required 2 years.

It is a risk for foreigners to work illegally but that doesn't mean that schools take no risk whatsoever. The reason both sides do it is because by and large, people tend not to get caught.

Finally, I don't know why I felt the need to expend so many words defending the Chinese government, they certainly don't deserve my sympathy, but I felt the law was being slightly misrepresented here. Or maybe I'm just in a contentious mood. :P

dragonsaver

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Finally, I don't know why I felt the need to expend so many words defending the Chinese government, they certainly don't deserve my sympathy, but I felt the law was being slightly misrepresented here. Or maybe I'm just in a contentious mood. :P

No I think you were being honest about what the situation is frequently like.  TIFC  ahahahahah

Rules can be broken or bent by both parties.  I think that when you have been in China long enough you tend to see new laws from a different perspective.  agagagagag agagagagag
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old34

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Finally, I don't know why I felt the need to expend so many words defending the Chinese government, they certainly don't deserve my sympathy, but I felt the law was being slightly misrepresented here. Or maybe I'm just in a contentious mood. :P

No I think you were being honest about what the situation is frequently like.  TIFC  ahahahahah

Rules can be broken or bent by both parties.  I think that when you have been in China long enough you tend to see new laws from a different perspective.  agagagagag agagagagag

I agree with LD and with DS's evaluation of LD's position.

Moreover, I nominate DS's comment for Classic Status:

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I think that when you have been in China long enough you tend to see new laws from a different perspective.
Knowledge is knowing that a tomato is a fruit; wisdom is knowing not to put it in a fruit salad. - B. O'Driscoll.
TIC is knowing that, in China, your fruit salad WILL come with cherry tomatoes AND all slathered in mayo. - old34.

Pashley

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Some years back I was one player in a complex conversation about what a young woman should do about her difficult situation. Both the recruiter (a British outfit offering to arrange "gap year travel" for a fee) and the school (a minor player in Fuzhou) had lied to her. She was being badly underpaid and the promised working visa had never been delivered so she was working illegally on a tourist visa. The final straw was that they wanted her to pay her own expenses (700 for bus fare alone) for a trip to Hong Kong to get another tourist visa. She had only a couple of days to decide because her current visa was about to run out.

A Chinese at the table (near-perfect English, in a senior admin job at the local EF) had a suggestion. That's easy. You walk into the boss's office tomorrow morning, tell him you want 1500 rmb, cash up front now, for the trip to Hong Kong. If he does not produce it, you will go to the PSB, tell them you have been lied to about a working visa, show them printouts of the email promising it, and ask them what you should do. The fine for a school is 50,000 per illegal employee. He'll give you the cash.

She never tested this; instead she took a job in another city at much better pay.
Who put a stop payment on my reality check?

James the Brit

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Bah humbug. It's always been like that. We all know how solid and corruption-free the chinese legal system is.

Same old China.

psd4fan

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