The difference between labor relations and labor relations

Employment of foreigners should go through the employment procedures, when the completion of the work permit + work residence permit, at this time when the enterprise in employment, the two sides can constitute labor relations. If it is not approved, the foreigner is already working in the enterprise, which is illegal employment.

If a foreigner who has not obtained the "Foreigner Work Permit" according to law first signs a labor contract with the enterprise, will it constitute a labor relationship?

Article 14 of the Supreme People's Court's Interpretation of Several Issues concerning the Application of Law in the Trial of Labor Dispute Cases (IV) stipulates that foreigners who have not obtained employment certificates in accordance with the law sign labor contracts with employers in China, and residents of Hong Kong, Macao and Taiwan who have not obtained employment certificates in accordance with the law sign labor contracts with mainland employers. Where a party requests confirmation of the existence of labor relations with the employing unit, the people's court shall not support it.

What are the consequences of illegal employment as an individual

According to Article 43 of the Exit and Entry Administration Law of the People's Republic of China, aliens who engage in any of the following acts are considered to be illegal employment:

(1) working in China without obtaining a work permit or a work-type residence permit in accordance with regulations;

(2) working in China beyond the scope of the work permit;

(3) Foreign students who violate the regulations on the administration of work-study and work in China beyond the prescribed post scope or time limit.

Employers who illegally employ foreigners will face a maximum fine of RMB100,000, up from Rmb50,000.

The maximum fine that foreigners who work illegally in China may face has been raised from Rmb1,000 to Rmb20,000. In serious cases, they will also face detention for five to 15 days until deportation, and may not be allowed to enter the country for 10 years from the date of deportation.

Article 80 of the Law also stipulates that aliens who illegally work shall be fined between 5,000 yuan and 20,000 yuan; If the circumstances are serious, he shall be detained for not less than five days but not more than 15 days and shall also be fined not less than 5,000 yuan but not more than 20,000 yuan.

An individual who introduces an alien to illegal employment shall be fined 5,000 yuan for each person illegally introduced, with the total amount not exceeding 50,000 yuan; The enterprise shall be fined 5,000 yuan for each person illegally introduced, with the total amount not exceeding 100,000 yuan; If there are any illegal gains, the illegal gains shall be confiscated.

Whoever illegally employs aliens shall be fined 10,000 yuan for each person illegally employed, not exceeding 100,000 yuan in total; If there are any illegal gains, the illegal gains shall be confiscated.

What procedures are required for lawful employment

When it comes to the employment procedures for foreigners, perhaps everyone's first reaction is "employment permit" and "employment permit".

According to the state regulations, from April 1, 2017, the implementation of the "integration of two certificates", that is, for more than 90 days of work in China, will no longer be issued "foreign expert certificate (foreign expert China Permit)" and "employment permit (foreign entry employment Permit)", officially activated the "Foreigner Work Permit Notice" and "Foreigner Work Permit".

Which foreigners are exempt from the foreigner work permit? There are mainly four categories of personnel: (1) Foreign professional technical and managerial personnel directly funded by the Chinese government, or foreign professional technical and managerial personnel funded by state organs and institutions, foreign professional technical and managerial personnel with senior technical titles or certificates of special skills confirmed by authoritative technical management departments or trade associations at home or abroad, and foreigners who hold the Foreign Expert Certificate issued by the Bureau of Foreign Experts Affairs;

(2) Foreign labor personnel with special skills who hold the "Permit for Foreigners Engaged in Offshore Oil Operations in the People's Republic of China" and are engaged in offshore oil operations without landing;

(3) Foreigners who hold the Temporary Business Performance License approved by the Ministry of Culture for commercial artistic performances;

(4) Foreigners holding Chinese Permanent Residence Permits for Foreigners.

What are the differences between Employment of Hong Kong, Macao and Taiwan residents and foreigners In China According to previous regulations, Hong Kong, Macao and Taiwan residents in mainland China to work, also need to apply for an employment permit. If unauthorized employment is not handled, it will also constitute illegal employment. The following is the comparison between the two under the old regulations: It should be clear that for China's Hong Kong, Macao and Taiwan residents, from August 2018, the relevant departments have not accepted the processing of new employment permits, that is, China's Hong Kong, Macao and Taiwan residents, just like other migrant workers, directly form labor relations with the employer and directly sign labor contracts.

Application of law to the employment of foreigners

Labor contract

Once a foreigner is employed in a domestic enterprise according to law, in accordance with the relevant provisions of the Regulations on the Administration of Employment of Foreigners in China, the enterprise shall sign a labor contract with the foreigner who is employed, and the term of the labor contract shall not exceed five years.

According to this regulation, we can draw the following two conclusions:

First, the foreigner who has gone through the employment procedures in accordance with the law and established a labor relationship with the employer, the relevant labor laws and regulations of China shall be applicable in accordance with the law, so the enterprise shall sign a labor contract with the foreigner within one month from the date of employment, otherwise the foreigner has the right to ask the employer to bear the legal responsibility for failing to sign a labor contract.

Second, the term of the labor contract. According to the regulations, enterprises and employed foreigners should conclude labor contracts in accordance with the law. The term of a labor contract shall not exceed five years. A labor contract shall be terminated upon expiration of its term, but may be renewed after going through the examination and approval procedures as provided for in Article 19 of these provisions.

Accordingly, when a foreigner establishes a labor relationship with a domestic enterprise and signs a labor contract, the type of labor contract is limited to a fixed term labor contract with a period of not more than five years, and the provisions on non-fixed term labor contracts are not applicable, and the same is not applicable to labor contracts with a period of completing a certain task.

In this regard, China's provinces and autonomous regions have different views, of which very few places recognize this breakthrough in the law of the agreement, such as Shanghai "on the implementation of" Several Opinions on the Administration of Foreigners in China's Employment Regulations "notice 16th: The rights and obligations of both parties concerning the term of employment, position, remuneration, insurance, working hours, conditions for termination of the employment relationship, liability for breach of contract, etc. between the enterprise and the foreigner who has been approved for employment shall be stipulated in the labor contract.

overtime

Foreigners who are employed in accordance with the law also have the right to overtime pay if they work overtime outside the statutory working hours. According to the provisions of the national law, foreigners who are employed in accordance with the law shall also be subject to the relevant provisions of the State on working hours. Therefore, for foreigners who are employed in accordance with the law, if they work beyond the legal working hours, the enterprise shall pay overtime wages according to the law.

Social insurance

Foreigners are also required to pay social insurance by law. The problem of foreigners paying social insurance has always been concerned by employers, but it has not been well implemented because of the disconnection between the actual operation and the legal provisions.

Before the implementation of the Social Insurance Law, it was very rare for employers to pay social insurance for foreigners, and more of them fulfilled relevant obligations through commercial insurance.

Article 97 of the Social Insurance Law stipulates that "Foreigners who are employed within the territory of China shall participate in social insurance with reference to the provisions of this Law", which for the first time stipulates the issue of compulsory payment of social insurance by foreigners.

Later, the Interim Measures for Foreigners Working in China to Participate in Social Insurance issued by the Ministry of Human Resources and Social Security further clarified the issue that foreigners must pay social insurance.

The Measures also mention that persons with the nationality of countries that have signed bilateral or multilateral agreements on social insurance with China, if employed in China, their participation in social insurance shall be handled in accordance with the provisions of the agreement. It should be noted that it is not necessary for nationals of countries with bilateral agreements to be exempt from social insurance contributions as long as they are employed in the country. If they have not paid the corresponding social insurance in the country, or have exceeded the social security bilateral agreement of the exemption period, at this time, the employer must still pay social insurance for them according to law.

At present, China has signed bilateral agreements on social insurance with nine countries (Germany, South Korea, Denmark, Finland, Canada, Switzerland, the Netherlands, France, Spain), and enterprises can refer to the corresponding agreements when hiring personnel from these countries.

Rest and leave

Foreigners who are employed in accordance with the law in the employing unit shall enjoy the right to rest and leave as stipulated by the laws and regulations of the State. This means that foreigners also enjoy annual leave, statutory holidays, marriage leave, maternity leave and other statutory holidays.

Minimum wage

For foreigners who are employed in accordance with the law in employing enterprises, the wage standard after providing normal labor shall not be lower than the local minimum wage standard.

Can international students do internships in China

Strictly speaking, international students are not allowed to practice in China. Because the so-called international students, their main purpose of coming to China is to study, their visas should also be written to study. Therefore, if the international student goes to work in the corresponding unit at this time, it may constitute illegal employment, because it is inconsistent with the content of the visa, unless the enterprise notes the internship on its residence certificate through formal channels.

According to Article 22 of the Regulations of the People's Republic of China on the Administration of the Entry and Exit of Foreigners, foreigners holding residence permits for study who need to work or practice off-campus shall, with the consent of their schools, apply to the Exit and Entry Administration of the public security organ for the residence permit to add information such as the location and duration of the work-study or practice.

A foreigner holding a residence permit for study who has not annotated the information specified in the preceding paragraph in his residence permit may not work off-campus for study or internship.

According to the Regulations on the Administration of Employment of Foreigners in China, foreigners who have not obtained residence certificates (i.e., holders of F, L, C, G visas), foreigners who have studied or practiced in China, and accompanying family members of foreigners who hold occupational visas are not allowed to work in China.

In case of special circumstances, the employing enterprise shall apply for a license in accordance with the examination and approval procedures of these Provisions, and the employed foreigner may not be employed until he/she changes his/her identity with the license to the public security organ and applies for a "residence permit" and "employment permit".

Can the enterprise terminate the labor contract when the foreign employee reaches the retirement age?

According to the Labor Contract Law, a labor contract ends when a worker reaches the statutory retirement age (currently 60 for men and 50 for women) or begins to enjoy pension benefits.

But can the company terminate the employment contract if the foreign employee reaches the retirement age stipulated by Chinese law? The Shanghai court had held that the Shanghai regulations did not bar foreigners who reached the mandatory retirement age from continuing to work in the city. However, the Beijing court held that the company could terminate the labor contract on the grounds that the foreign employees had reached the legal retirement age of our country, and did not need to pay economic compensation.

Can enterprises renew open-ended labor contracts with foreign employees?

The "Labor Contract Law" stipulates that after the same employer and an employee have concluded two fixed term labor contracts in a row, a non-fixed term labor contract shall be concluded when the contract is renewed again. However, in the case of two consecutive fixed-term labor contracts signed by the same enterprise and foreign employees, whether employees can request to sign non-fixed-term labor contracts is different in different regions. Subject to regional interpretation.

First of all, according to the Regulations on the Administration of the Employment of Foreigners in China, the term of a foreign-related labor contract shall not exceed five years, and the labor contract shall be terminated upon expiration. Both parties may renew the labor contract after completing the examination and approval procedures for the employment of foreigners.

Basic requirements for applying for a work or residence permit

They should be at least 18 years old, in good health, have no criminal record, have a confirmed employer in the territory, and have the necessary professional skills or appropriate level of knowledge for their work.

The work is in line with the needs of China's economic and social development, and is an urgent need for domestic professionals.

Where laws and regulations provide otherwise for foreigners to work in China, such provisions shall prevail.

The copyright of this article belongs to the original author, some pictures from the Internet. If there is infringement, please contact the background of this number, we will correct and delete in time.