2020/02/11

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Know Your Work Rights: Where to get legal help in Changsha




Overview:

In this article you will find basic, pertinent information related to the "extended holiday" which was issued by central Government recently to all Chinese enterprises and institutions - and therefore may affect you. Make sure your employer is aware of the provisions stipulated in the latest updates on employment law. However...


We believe that there may be some employers who may not be fully aware of these provisions. Please direct them to the following online pages which stipulate their obligations and your rights IN GENERAL. Hunan-level interpretation of these articles may vary from the standards set out by Beijing and Shanghai authorities although these usually set the precedent for all regions and employers nationally unless exceptional circumstances prevail which may curtail or change any of the conditions as set out in the following websites:


http://www.fdi.gov.cn/1800000121_39_3119_0_7.html



http://www.gov.cn/banshi/2005-05/25/content_905.htm


What can you do?


Below we have compiled some advice that may help you through any difficulties you may have if you feel your employer is not following national labour laws. Please note that in these extraneous circumstances there is going to be some degree of legal uncertainty so please bear that in mind when approaching an employer.


1. Talk to your employer first and explain things - don't just forward the regulations.

Be aware that some employers may genuinely not understand the law, relevant regulations, or their responsibilities. Some may also face genuine financial hardships. You could alleviate the situation by offering help or work in other forms. Be proactive.

2. If the employer does not listen to polite but firm explanations, and does not want to fulfill mandated responsibilities, then next steps would be to forward regulations to them (try forwarding the links/pics given above).

3. Then, if that seemingly fails, a complaint to your labour inspection office (), (see link/pic below) may help. Note that they may not want to get involved in contractual matters but you could mention to your employer that you know of them. You can also screenshot the following Chinese information which stipulates Changsha's labour offices in Chinese:

https://xw.qq.com/amphtml/20190927A03HYE00


4. If that fails, then possibly try the official city-level Labour Law Department but we do not know if they can hear cases or issues made by foreigners and you may only be able to seek their help after getting a legal rep to support you. But it's worth a try...


Address: China, Hunan, Changsha, Tianhua N Rd, 175 : 410100
Phone: +86 731 8401 1459

http://rsj.changsha.gov.cn/

(thanks to Edgar Choi of LawInAMinute)


For your reference, the organisation that issues Work Permits is: http://fwp.safea.gov.cn but we doubt their ability to intervene in these matters.


We hope, in all cases where a dispute exists, you can come to some sort of an agreement with your employer, but if that fails, it may be enough to show some of these links and screenshots as a means to showing that you are an informed individual with legal rights. Remember, they might face financial difficulties in this special period. An extreme and final step would be to contact your Embassy/Consulate but at this time many of their normal operations have been suspended across the board. 


Please also feel free to contact WNIC ([email protected]) and we can also try to raise the issue through our own channels, but clearly WNIC has no legal mandate and as such cannot give personalised legal advice.


Gov Regulations

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Screenshot this...

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THE LAW



http://www.gov.cn/banshi/2005-05/25/content_905.htm





5 Killer Questions

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The following information has been supplied, with permission, by Edgar Choi of LawInAMinute () in Shenzhen. We are thankful for his advice and support. If you need legal services or help, why not contact him (at the end of this section)? 


1. Do I have to tell doctors the details of what I have done and where I have visited if I have been infected?

"This is my privacy", you might want to say. Why do I have to reveal where I have been? Intentionally concealing where you have visited or and who you have been with, or providing false information is a crime according to provision 114 of Criminal Law. The government has to know these details in order to prevent the virus from spreading rapidly. As the latency period of this virus goes as long as 14 days, a lot of people may have been in close contact with you and have already contracted it during this period. As a result, they also have to be tracked down and quarantined, and hotel rooms, gymnasiums, restaurants etc. must also be sterilized. 


2. Now that the holidays have been extended, will I be paid for this period?

Yes. The PRC government has announced on the 28th of January that the Chinese New Year has been extended to prevent the epidemic from spreading. Therefore, this period is considered as statutory holiday.


3. What if my boss forces me to go to work at the office?

This extension is mandatory and your boss has no right to force you to work at the office. He shall have to bear criminal liability and risk being jailed or at least be fined for doing so.


4. How will my wages be paid?

Employees shall be paid their FULL amount of wages during this period. For schools/universities that have delayed the semester, teachers shall still receive their  salary as this is categorized as paid holiday.


5. How much shall I be paid for this period?

For 2/8 and 2/9, which are are weekends, 200% ofyour normal wages should be paid. For example, if your wage is 500 Yuan perday, it would be 1000, which is double this amount. For weekdays, 2/6 and 2/7,which are Thursday and Friday, just the normal amount is required. This rule applies to any day afterwards as well.


Legal Basis

Criminal Law

Article 114 

Whoever commits arson, breaches a dike, causes explosion, spreads poison or uses other dangerous means to sabotage any factory, mine, oilfield, harbour, river, water source, warehouse, house, forest, farm, threshing ground, pasture, key pipeline, public building or any other public or private property, thereby endangering public security but causing no serious consequences, shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years.

Article 115   Whoever commits arson, breaches a dike, causes explosion, spreads poison or inflicts serious injury or death on people or causes heavy losses of public or private property by other dangerous means, shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death. Whoever negligently commits the crime mentioned in the preceding paragraph shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if the circumstances are minor, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.

About the Author



Edgar Choi is the author of five books, viz: Commercial Law in a Minute; Economic Law in a Minute; Financial Law In A Minute; Intellectual Property Law in a Minute and The Miracles Of Finance. These books shall be in print by early 2020. 
Edgar is a law graduate of the Fudan University with a mission to promote law to serve better mankind, and he believes that legal literacy is a key factor to success. Since his childhood, Edgar has been taking joy in writing fiction and short stories. He hopes that through reading his legal stories, the traditional, passive way of learning law in class can be disrupted and readers can experience a brand new world by taking an active role and spending a few minutes every day in this series to have fun and actually remember what was read.

Edgar can be contacted by email [email protected]l.com.






In a recent article by TheWaijiao (you can search their ID in the wechat subscriptions section) a recent article created by "Vivian Mao, Dezan Shira & Associates" the following is set out:


Pay & Rest Days

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TheWaijiao

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"The Chinese State Council has announced the extension of the 2020 Chinese New Year holiday to February 2, 2020. Each city or province has followed this up with detailed implementation rules for their specific regions.

Shanghai, Jiangsu, Zhejiang, Guangdong, and other cities / provinces have formally required enterprises (except those organizations involved in providing basic services for residents and those involved in combating the spread of the virus) to not resume work prior to the February 10.


Many China HR professionals are facing awkward legal questions from employees related to this holiday extension. For example, should the extended days be treated as statutory public holidays or rest days, or should annual leave be deducted, or should deferred working days be arranged at weekends? Can enterprises arrange employees to work at home before resuming work? Should overtime payments should be made if enterprises ask employees to work during the extended days? These types of question have quickly become hot topics for businesses operating in China.


We will address these issues in this article.


Shanghais Municipal Human Resources and Social Security Bureau answered these questions at a press conference on January 28, 2020. The State Council and Shanghai Municipal Human Resources and Social Security Bureaus regulations are summarized as below. We also add our own interpretations based on our best understanding at the current time:


According to the Notice on Extension of 2020 Chinese New Year Holiday issued by the China State Council on January 26, 2020, this Chinese New Year Holiday will be extended to February 2, 2020 (this coming Sunday). 


If employees are unable to rest during this period due to prevention / control of the epidemic, rest in lieu should be arranged or remuneration should be paid in accordance with the related policies.


In practice, should the extended days of holiday be treated as statutory public holidays or rest days, and how should overtime payments be calculated?


In 2015, to celebrate the 70th anniversary of the end of World War II, the PRC central government decided to add one day of holiday on September 3, 2015. At that time the Ministry of Human Resources and Social Security of the Peoples Republic of China stipulated that if the employer asked employees to work on the special holiday, rest in lieu should be arranged or remuneration should be paid at 200 percent of the employees standard salary. Therefore, in our opinion, the same calculation standard should apply to this 2020 holiday extension unless otherwise advised.


Meanwhile, the Shanghai Municipal Human Resources and Social Security Bureau has also explained that the extended days should be treated as rest days. Enterprises should pay salary to staff not working during this period; and arrange rest in lieu or pay double salary to those staff having to work.


The Shanghai Municipality has advocated enterprises to arrange work-at-home during the extended days. Working at home as required by the enterprise should be treated as overtime work on a rest day. Rest in lieu should be arranged or overtime payment should be made.


However, this still poses questions. Are there differences between the Chinese New Year holiday extension (from January 31, 2020 to February 2, 2020) announced by the State Council and the delay of work resumption (from February 3, 2020 to February 9, 2020) announced by the Shanghai Municipality and other regional / municipal governments?


If those persons involved in providing basic services to residents and those involved in combating the spread of the virus need to work from February 3, 2020 (Monday) to February 7, 2020 (Friday), no rest in lieu or overtime payment should be arranged.


On the contrary, if those persons worked during the period from January 31, 2020 to February 2, 2020, either rest in lieu should be arranged, or overtime payment should be made.


The purpose for the Shanghai Municipality to require enterprises not to resume work earlier than February 10, 2020 is to reduce the risk of crowd gathering, rather than to increase the length of the Chinese New Year holiday.


China HR professionals may further ask whether it is possible to arrange and deduct annual leave for the period from February 3 to 7, 2020, considering that the enterprises are not allowed to resume work. This has not been specified in any announcement or explanation yet.


However, we may refer to Article 5 of the Announcement of the State Council on the Regulations of Paid Annual Leave of Employees in which it is stated: Enterprises shall coordinate and arrange for the annual leave of employees on the basis of the specific conditions of production and work, and the individual preference of employees. It means that enterprises have autonomy to arrange the annual leave. 


Meanwhile, the employees individual preference should be taken into consideration.


Therefore, if enterprises internally arrange annual leave during this period (because the business is interrupted by the coronavirus issue) in our view, it does not break the Shanghai governments rules from the legal perspective. In practice, it is recommended to obtain a consensus with your employees on the annual leave arrangement. 


Of course, if the enterprises are willing to take more social responsibility in this difficult time, this will have knock on effects concerning future staff retention and reputation enhancement. Employees want to know their employer is acting responsibly and will look after and protect them.


Apart from the Shanghai government, the Beijing Municipal Human Resources and Social Security Bureau also issued the Notice on Maintenance of Stable Labor Relationship During Epidemic Prevention and Control Period on January 23, 2020. 


The salaries to be paid in the treatment period, quarantine period, and work resumption period are specified in this Notice:


Employees suffering from coronavirus should be granted a treatment period. Enterprises should pay for sick leave according to the labor contract or collective contract. The sick leave payment should not be lower than 80 percent of the minimum salary standard of Beijing Municipality;


Employees in the quarantine period and / or medical observation period should be paid by their employers as normal; and


For any employees failing to return to Beijing and therefore unable to resume work on time due to the epidemic situation, the employer can treat the absence as annual leave. In case of failing to resume work for a long time, the staff can be arranged to be furloughed by consensus. During the furlough period, the enterprises should pay a basic allowance of not lower than 70 percent of the Beijing minimum salary standard.


For those staff currently on business travel who fail to return to Beijing due to the epidemic, the enterprises should pay salary as normal.


It is important to note that the advisories given have thus far been issued by Beijing and Shanghai. Other provinces and cities may reasonably be expected to follow these examples and interpret the local rules in the coming days; however, there may be variations. You can email for more info at [email protected]


Vivian Mao is in-house legal counsel at Dezan Shira & Associates Shanghai and is a partner of the firm. She has a law degree in International Economic Law from East China University of Political Science and Law, holds the Certificate of Lawyers Qualification, and is a member of International Bar Association. Her area of specialization is China Employment Law. 





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