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

Txu_xiaodanhe 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

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

L尹居全abor 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

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

liang_lindaArticle 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

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

yin_juquanAfter 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 Company B on July 11, 2011. The labor contract between the two parties stated that A would be paid a monthly base salary of RMB 12,100 and a monthly performance bonus of RMB 9,900 (in the PRC, performance bonuses are generally fixed sums). As of January 2012, the base salary and performance bonus had been adjusted to RMB 14,520 and RMB 11,880 respectively (26,400 RMB in total). Company B terminated its labor contract with A on July 30, 2012.
Continue Reading Once a Labor Contract Has Been Illegally Terminated, How Will A Court Calculate Lost Wages?

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

jiang_junlu1. 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 had this challenge: how to negotiate with the Legal Director at her branch about the change of position? When she greeted the Legal Director in the office, even the expression on her face became unnatural. Today, they finally had a chance to talk about this matter directly for an hour and a half. During the conversation, the Legal Director expressed reluctance about the change and even struck the desk in anger. At last, the negotiation ended in acrimony. “Oh my goodness…Just a change in title and no change in terms of salaries or other treatment, how can he be so stubborn?” Zhang Ran complained to her colleagues in a low voice. 
Continue Reading The Deadlock in Labor Law

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

untitledThose 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 the US context, Chinese law stipulates select grounds under which employers are allowed to dismiss their employees. Regardless of the number of employees terminated, whether it is one layoff or a mass layoff, the employer shall either reach a consensus on mutual termination with the employee(s) through consultation, or unilaterally terminate the employees under certain circumstances in accordance with relevant clauses in the law. In a mass layoff, employers may use both mutual consultation and unilateral termination. For instance, the employer may consider unilateral termination if the previous attempt to reach a mutual termination has failed.
Continue Reading How to Determine the Legal Ground for a Layoff: What You Need to Know——Article 1 in a series on layoffs

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 regard to the determination procedure of work-related injuries, the Rules for the first time ever provides that if labor dispute concerning determination of the employment relationship affects the determination of work-related injuries, the labor dispute must be resolved in accordance with law before the application for work-related injury determination, and the time for resolving the labor dispute is excluded from the time limit for applying for the determination. In addition, the Rules establishes the scheme of designation of jurisdiction for work-related injury determination, i.e. when departments of work-related injury determination at district or county level deem that the application for determination is out of their jurisdiction, they shall report the application to the municipal social insurance administrative departments for designation of jurisdiction.

Continue Reading 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

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而影响工伤认定的,应当在申请工伤认定前依法解决劳动争议,且解决劳动争议的时间将不计算在工伤认定申请时限内。此外,《规定》还建立了工伤认定的指定管辖制度,即区、县工伤鉴定部门认为工伤认定申请不属于本辖区管辖的,应当及时报请市社会保险行政部门指定管辖。


Continue Reading 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

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 of occupational diseases more practicable. For instance, if an occupational disease diagnosis or appraisal institution deems necessary to investigate the hazardous factors that may result in occupational diseases in the workplace, the institution may conduct an on-site investigation itself, or request the administrative departments of work safety supervision to so investigate. Upon the request, the administrative departments shall make an on-site investigation within 10 days. And employers shall not refuse or hinder the foresaid investigations.

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

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所职业病危害因素情况时,可以对工作场所进行现场调查,也可以向安全生产监督管理部门提出,安全生产监督管理部门应当在十日内组织现场调查,用人单位不得拒绝、阻挠。

Continue Reading 新职业病防治法加强对劳动者保护