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Tag Archives: labor law

Summary of Beijing’s Answers to Questions About the Application of Law in Adjudication of Employment Disputes (Part Three)

Posted in Corporate, Labor & Employment

This article was written by King & Wood Mallesons’ Labor law group. We have split the explanation of Beijing’s Answers to Questions Concerning the Application of Law in Adjudication of Employment Disputes (the “Answers”) published on the 24th of April 2017 into three parts, so that the main provisions can be easily understood. This is the third in our series and starts from point 8 of the Answers.… More…/更多

Summary of Beijing Authorities’ Answers to Questions of Law Application in the Handling of Employment Disputes (Part Two)

Posted in Corporate, Labor & Employment

This article was written by King & Wood Mallesons’ Labor law group.

We split the explanation of Beijing authorities’ Answers to Questions of Law Application in the Handling of Employment Disputes published on 24 April 2017 into three parts, in order that the Answers’ main provisions can be easily understood. This is the second part of our explanation.

The circumstances constituting “major changes in objective circumstances” 

The Answers provides that“a major change in objective circumstances” means a change after the conclusion of an employment contract th… More…/更多

Summary of Beijing Authorities’ Answers to Questions of Law Application in the Handling of Employment Disputes (Part One)

Posted in Corporate, Labor & Employment

This article was written by King & Wood Mallesons’ Labor law group.

On 24 April, 2017, the Beijing Higher People’s Court and the Beijing Employment and Labour Arbitration Commission jointly issued a document entitled Answers to Questions of Law Application in the Handling of Employment Disputes (the “Answers”), referred to as “Meeting Minutes 3” when it was being drafted and discussed. Attacking controversial issues head on, the ambitious Answers aims to harmonize rules applicable to difficult disputes, and was given high expectations at the outset. … More…/更多

New Policy on Foreigner’s Employment in China

Posted in Antitrust & Competition, Competition Law, Corporate, Labor & Employment
By Lucy Lu, Ding Wu  King & Wood Mallesons’ Commercial & Regulatory group

At the end of 2015, the Administrative Examination and Approval Reform Office of the State Council decided to integrate the Employment Permit for Foreigners (issued by the Ministry of Human Resources and Social Security) and the Foreign Expert Work Permit (issued by the State Administration of Foreign Experts Affairs) into the Foreigner’s Work Permit in China. This new policy has been implemented nationwide since 1 April 2017. Being more than just a simple combination of permits, the “Two-in-… More…/更多

How to deal with Employees’ Unreasonable Application for Sick Leave

Posted in Labor & Employment

BY Lucy Lu,Li Xin and Hang Ying. King & Wood Mallesons’ Commercial & Regulatory group.

According to the PRC labor laws, an employer is obliged to ensure employee’s right to stipulated medical treatment period if an employee is suffering from illness.  In practice, when an employee goes to the hospital and seeks professional advice from a doctor, the doctor will take account of all factors concerning illness and health risks of the employee and then issue official medical certificate, with which the employee may apply for sick leave with the employer.  Accordingly… More…/更多

Employers: Be Cautious with Pay Cuts

Posted in Labor & Employment

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

Reduction of an employee’s salary is often a consequence of the employer’s decision to demote the employee for some reason. However, the employer should refrain from meting out a pay cut arbitrarily. Usually, lawful pay cuts occur in two circumstances – when both employer and employee agree on it, or when the employer enforces it by law.

Pay cut agreement between employer and employee

Remuneration is a necessary clause of an employment contract. Article 35 of the Labor Contract La… More…/更多

New Rules for Basic Pension Transfer and Continuation

Posted in Labor & Employment

By LUO Ai and TANG Xiaojing  King & Wood Mallesons’ Commercial & Regulatory group.

On November 28, 2016, the Ministry of Human Resources and Social Security (“MHRSS”) issued the Notice on Several Issues in the Transfer and Continuation of Basic Pension Insurance of Urban Enterprise Employees (the “Notice”) clarifying several issues arising from the implementation of the Interim Measures for the Transfer and Continuation of Basic Pension Insurance of Urban Enterprise Employees(the “Interim Measures”) since 2010.

Regulations on Urban Employees’ B… More…/更多

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