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Draft legislation under review targets negligent employers
Courts will not protect welfare or other labor rights of foreigners working without a work permit, even workers under contract, if a draft law is passed.
Foreigners without a work permit or an expert certificate — a license issued by the government to some foreign workers with proven talent and expertise in their field — could lose the cover of the "labor relationship" with the employer in the courts, even if they are under contract.
The "labor relationship’’, a legal term, covers labor rights including social insurance, healthcare and compensation for work injury.
The draft, which the Supreme People’s Court submitted to judges, professionals and the general public for feedback in the past month, has split opinion on whether stricter enforcement of the work-permit requirement will actually protect foreign workers from negligent employers trying to cut corners.
China Daily’s request for a more detailed explanation was declined by the top court, since "the stipulation has not been passed and may undergo changes", it said.
Liu Deheng, deputy chief of the labor dispute tribunal at Beijing’s Chaoyang district court, said the draft is meant to standardize judicial rulings regarding foreigners who come to China without a work visa but find work.
A work visa, under China’s laws, is a premise to apply for a work permit.
Chinese law stipulates that labor disputes have to go through arbitration before a lawsuit can be filed. This tends to add a considerable amount of time to the procedure.
There has been a marked increase in labor disputes, Liu said.
The labor dispute arbitration committee in Chaoyang received 14 cases from October 2010 to October 2011. The number surged to 75 from October 2011 to July.
"More foreigners are turning to the law to protect their labor rights. It shows that the law is working and that they are willing to live in China for a considerable time, otherwise, the lawsuit-after-arbitration procedure is not cost effective," she said.
"Requiring foreigners to obtain a work permit is compulsory and it offers legal guarantees."Chaoyang district, according to the district government’s website, is a major center of foreign business in Beijing. It has more than 3,000 foreign companies and more than 100 of the global top 500 companies have offices there.
Labor disputes involving foreign employees, however, are treated differently in courts across the country, she said.
In Beijing, if a lawsuit is filed, foreigners without a work permit can receive salaries owed to them.
However, He Li, a labor lawyer, said he was concerned by the proposal since some foreigners do not have work permits because companies are reluctant to go to the trouble of doing the necessary paperwork.
Liu said there are administrative regulations for these employers, although the draft law itself does not deal with companies failing to apply for permits.
Wang Wenjie, who works in the human resources department at a Shanghai company, said the policy will probably affect foreigners working in small-scale companies as larger companies will have the resources to do the paperwork.
An English teacher from Russia working in Beijing admits she does not have a work permit because of the bureaucracy.
The 33-year-old said procedures to obtain a work permit are complicated and the permit is tied to one particular employer. This makes it a drawn-out affair if she changes employer.
The Russian, who requested anonymity, has been teaching English at the school for four years.
"I took the risk of changing my life path to come to China, I have paid taxes, why are my rights not protected by laws?" she asked.
The Ministry of Public Security said it is difficult to know how many foreigners are working in China without work permits, but most illegal employment seems to be concentrated in a few sectors, such as teachers, domestic helpers and workers at labor-intensive industries.