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China Law Insight

Tag Archives: labor law

Taking Annual Leave to Explore the World More Often!

Posted in Labor & Employment

By Lucy Lu,  Lexina Li and Enya Yang King & Wood Mallesons’ Commercila & Regulatory group

Annual leave is an important reflection of the right to rest granted by law to employees.  The introduction of the annual leave system has made the taking of holidays a hot topic amongst both employees and employers.

Mr. Zhang, a resident of Zhangjiang, Shanghai, quit his job on 10 March 2012. Four days later, on 14 March 2012, he commenced employment with a new company. For the following five years he worked relentlessly without taking annual leave. At the end of 2016, Zhang’s employ… More…/更多

How employers cope with employees’ early departure

Posted in Corporate, Labor & Employment

by Linda Liang, Yuting Zhu King & Wood Mallesons’ Commercial & Regulatory group

Human resources are key to a company’s core competences. In Beijing, as the household registration quota is scarce, enterprises often attract employees by helping them obtain household registration. However, some employees have their own calculation, which is to leave their jobs as soon as they obtain the quota. Facing such a situation, what can enterprises do to protect their legitimate rights and interests? We will discuss this matter through a review and analysis of a case in Beijing.… More…/更多

For Occupational Health, Have You Done Your Best?

Posted in Uncategorized

By Luo Ai , Xie Minru and Guo Xian King & Wood Mallesons’ Commercial & Regulatory group

Occupational diseases are defined as the diseases employees suffer due to their exposure to toxic or harmful factors such as dust and radioactive substances as a result of occupational activities. Companies should be responsible for the prevention and control of occupational disease. However, in practice, many companies usually ignore it at first and eventually pay a high price when hazards in the workplace have led to serious illness. For example, an international high-tech supplier … More…/更多

On Calculation of Monthly Salary in the Case of Absence

Posted in Labor & Employment

By Yin Juquan, Zhang Yuanhao.King & Wood Mallesons’ Commercial & Regulatory group

For a new employee who has served less than a month, or an employee with leave of absence, his/her pay may need to be calculated based on an incomplete month. The law does not specify a calculation method in these circumstances. This article analyzes two typical monthly salary calculation methods for employees who have taken leave of absence.

Read full article, please click here.… More…/更多

Suggestions on Employers’ Prudence about “Deemed as Voluntary Quit” Regulation

Posted in Labor & Employment

By Luo Ai  Xie Minru  King & Wood Mallesons’ Commercial & Regulatory Group

An announcement from Ministry of Human Resources and Social Security of the People’s Republic of China (MOHRSS) comes out that “Letter of the General Office of the Ministry of Labor on Answer to Whether Disputes Arised from Determining Employees’ Leaving without Permission as Voluntary Quit Falls into the Scope of Labor Disputes” is officially abolished on April 13th ,2016, while “Letter of the General Office of the Ministry of Labor on Answer to Definition of Voluntary Quit and Ter… More…/更多

Basic Legal Facts of Trade Unions in China

Posted in Labor & Employment

By Xiaodan Xu and Xiu Pei King & Wood Mallesons’ Commercial & Regulatory Group

Trade unions always play a critical role in reconciling employment relationship in China, however, and enterprises often could not get to the nitty-gritty when it comes to trade union related problems due to their complexity.  In order to give you a basic concept of trade union, we collected and listed some frequently asked questions and our answers are also provided thereunder.

Read full article, please click here.… More…/更多

Interregional Employment: Challenges revealed to“Social Insurance Paid Through a Third party”

Posted in Labor & Employment

By Jiang Junlu Zhang Jingjing King & Wood Mallesons’ Commercial & Regulatory Group

Interregional employment is an increasingly common arrangement in practice. Interregional employment means that the domicile of employer differs from the location where employment contract is performed. The difference is generally caused by the feature of employer’s business. For example, employer is registered in Beijing and does not have any branches in other cities. But employer needs to assign salesmen to work in other cities or directly hire salesmen in these cities for bu… More…/更多

Does the 24-month Medical Treatment Period Apply Directly to Employees?

Posted in Labor & Employment

By Jiang Junlu and Zhang Hongyuan King & Wood Mallesons’ Commercial & Regulatory Group

According to Article 3 of the Provisions on the Duration of Medical Treatment for Enterprise Employees with Illnesses or Non-Work-Related Injuries (“Provisions”), employees of an enterprises who suffer illnesses or non-work-related injuries and need to cease working and receive medical treatment shall be given a 3-24 months medical treatment period depending on their actual years of service and those with the current employer. According to Article 2 of the Circular of the Mini… More…/更多

The Liability of an Employer in Case of Sudden Death of its Employee from Overwork

Posted in Labor & Employment

By Yin Juquan Song Miao King & Wood Mallesons’ Commercial & Regulatory Group

A. Summary of the Case (hereinafter as the “Case”)

Mr. Tan worked as a service representative at the Customer Relationship Operation Department of Kunshan Hua A Company (the “Company”). He returned to his dormitory after work at 1:00 AM on December 12th, 2013, and was found dead at 11:00 PM on the same day. It is initially diagnosed by the Kunshan City Huaqiao Medical First-Aid Station that the cause of his death was on-site sudden death.

The court found that Mr. Tan’s medical examination re… More…/更多

On the way to or back from work. Work-related injury?

Posted in Labor & Employment

By Luo Ai and Xie Minru King & Wood Mallesons’ Commercial & Regulatory Group

On March 28th of 2016, the Second Opinions of Several Issues concerning the Implementation of the Regulation on Work-Related Injury Insurance was issued by the Ministry of Human Resources and Social Security. According to the Article 6 of the Second Opinions, an employee shall be ascertained to be “on the way to or back from work”, if he or she was commuting along a reasonable route between his or her workplace and residence within a reasonable time on the purpose of going to or return from work. Henc… More…/更多

Case Analysis of Labor Disputes on Foreign Employment

Posted in Labor & Employment

By Lucy Lu, Ding Wu King & Wood Mallesons’ Commercial & Regulatory Group

The Rules for the Administration of Employment of Foreigners in China, promulgated by former Labor Ministry, Public Security Ministry and Ministry of Foreign Affairs, is an old provision since 1996 without any revision. Recently with the internationalization of the employment market in China, there are more and more foreign labor disputes in new style. From the judgment of legitimate employment by focusing on working permit, to the application of severance payment to foreigners, and the judicia… More…/更多

How change of address affects employment relationship

Posted in Labor & Employment

By Xu Xiaodan and Qi Yiduo King & Wood Mallesons’ Commercial & Regulatory Group

In a case in Guangdong Province, the Employee and the Company concluded a written employment contract on July 1, 2012, and agreed that the work location of the Employee is Guangdong Province. The first part of the contract reads “the domicile of the Company is: Second Floor, Building B, Chengnaner Road No.12, South District, Zhongshan”. On May 13, 2013, the Company posted a notice and notified the employees that it decided to change its registered place to “Third Floor, East Road No.2, East T… More…/更多

Can employers terminate the employment contract due to an employee’s giving birth to a third child?

Posted in Labor & Employment

By Xu Xiaodan and Liu Chang King & Wood Mallesons’ Commercial & Regulatory Group

The Amendment of the PRC Population and Family Planning Law has been officially implemented as of January 1st, 2016. The aforementioned Amendment has changed China’s previous one-child policy to one that encourages couples to have a second child, establishing the “two-child policy”, under which couples are allowed to have additional children if legal requirements are met.

The issue to be addressed here, is whether an employer may terminate an employee’s employment contract, … More…/更多

Interpretation of “Guideline of Shenzhen Intermediate Court on Trial of Labor Dispute Case”Legal Relationship between Contract-Issuing Party, Affiliated Person, or Lessor of Business Licenses and Employee

Posted in Labor & Employment

By Yin Juquan and Song Miao  King & Wood Mallesons’ Commercail & Regulatory Group

Labor disputes tend to occur among the contractor, the affiliated party, the lessor and lessor of business license in cases involving illegal contracting or subcontracting to employers without entity qualifications. To be specific, it’s worth pondering over who takes responsibility once occupational injury occurs if in the process of construction, the construction unit subcontracts partial duties to employers without entity qualifications. The above matter involves sorting le… More…/更多

Labor law in statistics — case studies on “De Facto Labor Dispatch”

Posted in Labor & Employment

By Linda Liang  Hongchuan Li  King & Wood Mallesons’ Commercila & Rehulatory Group

Article 27 of Interim Provisions on Labor Dispatch stipulates that “where an employer uses workers in the form of Labor Dispatch under the name of hire of work, outsourcing, etc., the provisions hereof will apply.” The so-called concept of “de facto labor dispatch” is derived from this article. There isn’t a definitive line in distinguishing outsourcing and labor dispatch in practice. Certain local regulations in Shanghai and Jiangsu do provide guidance, but not enough to be co… More…/更多

Once a Labor Contract Has Been Illegally Terminated, How Will A Court Calculate Lost Wages?

Posted in Labor & Employment

By Yin Juquan and Pan Faluan, King & Wood Mallesons’ Labor Group

After an employee has been illegally terminated, a court or arbitrator may order their employer to reinstate them and compensate them for lost wages. How will the amount of lost wages be calculated, given that the employee was not actually working for the employer during the relevant time period?

We will give a brief introduction to this topic through a review and analysis of Judgment no. 11644, (2014), Civil Tribunal, Beijing Second Intermediate People’s Court.

1. Summary of the Case

Employee A joined Compan… More…/更多

The Deadlock in Labor Law

Posted in Labor & Employment

By Jiang Junlu  Li Hongchuan King & Wood Mallesons’ Labor Group 

1. Where no agreement is reached, the law provides no remedy

Coming out of the conference room, Zhang Ran appeared depressed. Leaning on her elbow at the desk, Zhang Ran felt she had met her biggest difficulty since taking the office of HR director. In March, the Head Office informed her that all the legal departments of its China entities would be integrated into the Asia Pacific head office, and accordingly, only the position of Legal Business Partner would still be offered in the China entities. Since then, Zhang Ran … More…/更多

How to Determine the Legal Ground for a Layoff: What You Need to Know——Article 1 in a series on layoffs

Posted in Uncategorized

By Liang Yanling(Linda)  Wang Zhaogang  King&Wood Mallesons’ Labor Group

Those who watch Hollywood films and American television shows will be familiar with the following scene: A hapless employee is informed of his termination by his boss and must immediately pack up his things and leave the office. The employee is then seen leaving, carrying a Bankers Box, possibly engendering sympathy from the audience. Chinese films do not typically show such scenes because in China, employers are not allowed to fire someone at-will in this manner.

Unlike At-Will Employment as found in t… More…/更多

Beijing Released New Regulations on Work-Related Injury Insurance: Time for Resolving Labor Disputes Excluded from Time Limit for Applying for Work-Related Injuries Determination

Posted in Labor & Employment

By King & Wood Mallesons’ Labor Group

Beijing Implementation Rules on Regulations on Work-Related Injury Insurance (Beijing Municipal Decree No. 242) (hereinafter "the Rules") was released and effective on December 5th, 2011. Based on the Regulations on Work-Related Injury Insurance promulgated by the State Council of the People’ s Republic of China and taking into consideration the Beijing practice, the Rules details the determination of work-related injuries, appraisal of work capability, and payment of work-related injury benefits, etc.

With re… More…/更多

北京出台实施工伤保险新规:解决劳动争议不计入工伤认定申请时限

Posted in Labor & Employment

作者:金杜律师事务所劳动

《北京市实施〈工伤保险条例〉若干规定》(北京市人民政府令第242号)(以下简称“《规定》”)已于2011年12月5日发布并实施。《规定》在国务院《工伤保险条例》的基础上,结合北京市的实际情况,对工伤认定、劳动能力鉴定、工伤保险待遇支付等方面进行了细化规定。

在工伤认定程序上,《规定》首次提出,因确认劳动关系发生争议… More…/更多

New Law on Prevention and Treatment of Occupational Diseases Strengthens the Protection for Employees

Posted in Labor & Employment

King & Wood Mallesons’ Labor & Employment Group

The Decision to Amend the Law of the People’s Republic of China on Prevention and Treatment of Occupational Diseases was adopted by the Standing Committee of the 11th National People’ s Congress on December 31st, 2011. The amended Law of the People’s Republic of China on Prevention and Treatment of Occupational Diseases (hereinafter "Law") came into force on the same day.

In order to protect the rights and interests of patients with occupational diseases, the Law makes diagnosis and appraisal … More…/更多

新职业病防治法加强对劳动者保护

Posted in Labor & Employment

金杜律师事务所劳动法

2011年12月31日,十一届全国人民代表大会常务委员会表决通过了修改《中华人民共和国职业病防治法》的决定。修订后的《中华人民共和国职业病防治法》(以下简称“新《职业病防治法》”)已于同日起施行。

为保障职业病病人的权益,新《职业病防治法》加强了职业病诊断、鉴定的可操作性,规定当职业病诊断、鉴定机构认为需要了解工作场… More…/更多

Shared Benefit or Shared Burden? Provisional Measures on Social Insurance for Foreigners Working in China

Posted in Labor & Employment

By Xu Xiaodan King & Wood’s Labor Group

The Provisional Measures on Social Insurance for Foreigners Working in China (the "Provisional Measures ") were issued on September 6, 2011 by the Ministry of Human Resources and Social Security and will come into effect on October 15, 2011. The Provisional Measures provide more specific rules on the requirement that foreigners working in mainland China should participate in the PRC social insurance scheme as stipulated in the PRC Social Insurance Law (promulgated on August 28, 2010, and came into effect on July 1, 2011). The P… More…/更多

《在中国境内就业的外国人参加社会保险暂行办法》要点总结

Posted in Labor & Employment

作者: 徐晓丹 金杜律师事务所劳动组

《在中国境内就业的外国人参加社会保险暂行办法》(“《暂行办法》”)已经于2011年9月6日由人力资源和社会保障部公布出台,并将于2011年10月15日起开始实施。该《暂行办法》针对2010年8月28日出台并于2011年7月1日实施的《中华人民共和国社会保险法》(“《社会保险法》”)中提出的在华就业的外国人应当参加社会保险的要… More…/更多