Op-Ed Contributors

Make law work for foreign workers

By Sun Lin and Cui Yana (China Daily)
Updated: 2010-07-21 07:53

The recovery of China's exports sector and the shortage of workers in South China have resulted in a rise in the number of illegal immigrants from bordering countries like Vietnam, adding pressure on local public security and migrant population management authorities. And regardless of their legal or illegal status, the number of unskilled foreign workers in China and the structure of foreigners' employment are changing.

So, in order to ensure that domestic workers are not deprived of the jobs they are adept at, it is necessary to control the flow of foreign personnel into China. But the experiences of developed countries show the influx of foreign unskilled workers is inevitable in a country that is experiencing economic boom. Chinese policymakers have to face this reality and upgrade legislation timely, apart from setting restrictions and taking other necessary measures to adapt to the changing times.

One of the most serious problems is whether the Labor Contract Law applies to foreigners working in China, which is the focus of many labor disputes involving foreigners. In reality, employers and their foreign staff usually agree that either side could break the contract if it informs the other side in advance (say a month or two). But the Labor Contract Law has articles that state the circumstances under which a contract could be broken. Hence, the employers and foreign employees often argue whether the law can be cited in their disputes.

Yet there are neither coherent national laws nor local regulations. The result: whoever loses in such legal disputes is bound to consider the judgment unfair.

Another major problem is whether foreign woman workers should get special treatment during pregnancy. Since China's family planning policy doesn't apply to them, they can have more than one child and demand maternity leave more than once. But should they get more than one maternity leave? And how much salary can they draw during their maternity leave?

Labor and family planning policy authorities don't have clear answers to such questions because they are not enshrined in the law. So, it is difficult to protect the legal rights and interests of employers as well as foreign woman workers.

In short, in order to keep pace with the changing profiles of foreigners working in China, the government has to change related legislation.

The authors are Shanghai-based lawyers specializing in labor disputes.

(China Daily 07/21/2010 page9)