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Abstract
Employment is an important issue for the China (Shanghai) Pilot Free Trade Zone. In the China (Shanghai) Pilot Free Trade Zone the labor relation presents distinct international-oriented character and diverse employment forms. Correspondingly, in the China (Shanghai) Pilot Free Trade Zone some problems relating to the employment, especially the employment of foreigner staff, are challenged by the enterprises. This article tries to put forth some suggestions on how to resolve these problems.
Notes
In December 2014 the area of the Pilot FTZ was extended to 120.72 square kilometers.
It stays in Section 8 of this overall plan: The Administrative Committee of China (Shanghai) Pilot Free Trade Zone (Administrative Committee) shall be the agency designated by the Municipal People’s Government to be responsible for implementation of specific reform pilot tasks in the Pilot FTZ, planning and coordination of the relevant administrative matters in the Pilot FTZ, and shall perform the following duties pursuant to these regulations: (2) Responsibility for the relevant administration for investments, trading, financial services, state land planning, construction, traffic, landscaping and aesthetics, environmental protection, human resources, intellectual property, statistics, housing, civil defense, water works, municipal administration, sand so on in the Pilot FTZ.
Guibin Hong (洪桂彬), Analysis and Process on Labor and Employment Polices in the Free Trade Zone. 汇业观察.
The concept of international labor standards is confirmed by the International Labor Organization (ILO) in order to establish an international minimum level of protection. It refers to international conventions agreed upon by international actors and set forth to protect basic worker rights, enhance worker’s job security, and improve their terms of employment on a global scale. There are four fundamental standards: (1) the right of workers to associate freely and bargain collectively; (2) the end of forced and compulsory labor; (3) the end of child labor; and (4) the end of unfair discrimination among workers.
In China the labor standards in relation to the freedom of association and collective bargaining are always criticized by the international communities. In: Wu (Citation2014, 16).
Effective date: April 1, 2011. Article 43 of this law states: “For labor contracts, the laborers’ place of work shall apply; if such place of work is difficult to determine, the laws of the employers’ principal place of business shall apply. For labor dispatches, the laws of the place in which the labors are sent shall apply.” See http://www.wipo.int/wipolex/en/details.jsp?id=8423
Guibin Hong (洪桂彬), Analysis and Process on Labor and Employment Polices in the Free Trade Zone. 汇业观察.
Effective Date: September 18, 2008, State Council Decree No. 535.
Article 14 of Implementation Regulations for the Labor Contract Law of the People’s Republic of China states: “Where the place at which a labor contract is to be performed is not the same as the place at which the employer is registered, employee-related matters such as the minimum pay level, work protections, working conditions, precautions taken against occupational hazards and the local average monthly pay in the previous year shall be governed by the relevant provisions applicable where the labor contract is to be performed. If the relevant standards where the employer is registered are higher than those applicable where the labor contract is to be performed and both the employer and the employee have agreed to follow the provisions applicable where the employer is registered, those provisions shall apply.” See http://law.wkinfo.com.cn/legislation/detail/MTAwMDAwNzI4NTBk?q=%E5%8A%B3%E5%8A%A8%E5%90%88%E5%90%8C%E6%B3%95%E5%AE%9E%E6%96%BD%E6%9D%A1%E4%BE%8B
Guibin Hong (洪桂彬), Analysis and Process on Labor and Employment Polices in the Free Trade Zone. 汇业观察.
Effective Date: November 12, 2010.
Article 7 of Administrative Regulations on the Employment of Foreigners in China states: “Any foreigner employed in China must meet the following criteria: (1) be at least 18 years of age and in good health; (2) have the professional skills and appropriate vocational experience required for the intended position; (3) have no criminal record; (4) have a definite employer; and (5) have a valid passport or other international travel document which can be used in lieu of a passport (in these regulations referred to as a travel document).” See http://law.wkinfo.com.cn/legislation/detail/MTAwMDAwMTc5MjJfRW4%3D?searchId=1ff3db4fdea8483886b55c3194b3855d&index=1&q=Administrative%20Regulations%20on%20the%20Employment%20of%20Foreigners%20in%20China
Effective Date: April 14, 1998.
Article 6 of Notice of Shanghai Municipal Bureau of Labor on Issuing Several Opinions on implementing the Administrative Provisions on Employment of Foreigners in China states: “Foreigners who seek employment in Shanghai shall possess the following qualifications: (1) Who have good health, and shall not suffer from mental illness and leprosy, AIDS, venereal diseases, open tuberculosis and other infectious diseases, as well as the diseases not supposed to have for specific posts; (2) Who are known to specific employers which wish to employ them; (3) Who possess professional techniques, diploma and at least two-year related working experience as needed in such posts they pursue; (4) Who have no criminal records; (5) Who possess valid passport or other international travel documents which are equivalent to passport; and (6) Who are more than 18 years old, and less than 60 years old for male or less than 55 years old for female.” See http://law.wkinfo.com.cn/legislation/detail/MTAwMDEwMTgwNDhfRW4%3D?searchId=0634c6ba1dbf47ecbb76742289f48c12&index=1&q=Issuing%20Several%20Opinions%20on%20implementing%20the%20Administrative%20Provisions%20on%20Employment%20of%20Foreigners%20in%20China
Article 22 of Administrative Regulations on the Employment of Foreigners in China (2010) states: “The wages paid by an employer to a foreign employee must not be lower than the minimum wage in the locality.” Article 23 of this regulation states: “Work hours, rest days and holidays, work safety and hygiene standards and social security for foreign employees in China will be implemented in accordance with relevant state regulations.” See http://law.wkinfo.com.cn/legislation/detail/MTAwMDAwMTc5MjJfRW4%3D?searchId=1ff3db4fdea8483886b55c3194b3855d&index=1&q=Administrative%20Regulations%20on%20the%20Employment%20of%20Foreigners%20in%20China
Article 6 of Trade Union Law of the People’s Republic of China states: “Trade unions shall harmonize labor relations and safeguard the labor rights and interests of enterprises and employees through a system of negotiation on equal footing and collective contracts.” See http://law.wkinfo.com.cn/legislation/detail/MTAxMDAwMTAzMzBk?q=%E5%B7%A5%E4%BC%9A%E6%B3%95
Article 51 of Labor Contract Law of People’s Public of China (2012) states: “Enterprise employees and their employer may conclude a collective contract on matters such as labor remuneration, working hours, rest periods and off days, work safety and health and insurance and welfare, etc. through negotiation. A draft collective contract shall be submitted to the employee representatives congress or all staff for discussion and adoption. A collective contract shall be concluded between the labor union representing the enterprise employees and their employer; for an employer which has not established a labor union, the higher-level labor union shall guide the representatives elected by the workers to conclude a collective contract with the employer.” See http://law.wkinfo.com.cn/legislation/detail/MTAwMDM0NDY4MjZk?q=%E5%8A%B3%E5%8A%A8%E5%90%88%E5%90%8C%E6%B3%95