2007年3月23日，上海市劳动和社会保障局通过了《本市劳动争议仲裁管辖暂行规定》（以下简称“规定”），就劳动争议仲裁管辖地作出了新的规定，该《规定》于2007年5月1日起正式实施。
一、根据该《规定》，以下劳动仲裁案件由上海市劳动争议仲裁委员会负责管辖和审理：
1、注册资金在1千万美元以上（或相当于1千万美元以上）的上海市外商独资企业和劳动者发生的劳动争议案件；
2、上海市企业与其取得合法就业资格的外籍人员、台港澳人员和定居国外人员发生的劳动争议案件；
3、劳动者与用人单位因缴纳本市城镇或小城镇社会保险费发生的劳动争议案件；
4、有重大影响的劳动争议案件。
二、其他由区县劳动争议仲裁委员会受理的劳动争议案件。
其他由区县劳动争议仲裁委员会受理的劳动争议案件，以用人单位所在地确定管辖权。此处“用人单位所在地”指用人单位主要办事机构所在地，如主要办事机构所在地无法确定的，以用人单位注册登记地为用人单位所在地。
三、非法用工单位劳动者职业事故伤害案件的管辖地。
非法用工单位，在这里是指无营业执照或未经依法登记、备案的单位，以及被依法吊销营业执政或者撤销登记、备案的单位。如劳动者与此类单位发生职业事故伤害方面的劳动争议案件，有单位经营形态的，由单位主要经营场所所在地劳动争议仲裁委员会管辖；单位经营形态不明确或无经营形态的，由出资人住所地劳动争议仲裁委员会管辖；有多个出资人且不在同一辖区的，多个出资人住所地劳动争议仲裁委员会都有管辖权。
Sunday, May 27, 2007
Penalty provisions on illegal employment
According to the Law of the People’s Republic of China on the Entry and Exit of Foreigners and its detailed rules, foreigners who are employed in China without permission from Chinese government shall have their employment terminated and may at the same time be fined up to RMB 1,000, and those whose offenses are serious may at the same time be ordered to leave China within a specified time. Companies and individuals who employ foreigners without permission shall terminate employment with the foreigners and may at the same time be fined from RMB 5,000 to RMB 50,000, and be ordered to cover all the expenses of repatriating the foreigners whom they had employed.
According to Rules for the Administration of Employment of Foreigner in China, for foreigners who refuse to have their Employment License inspected by the labor administrative authorities, change their employers and professions at will or extend their term of employment without permission, the labor administrative authorities shall withdraw their Employment Permit and recommend that their residence status be canceled by the public security organs. In case of deportation, the costs and expenses shall be borne by the said foreigners or their employer. For foreigners and employers who forge, alter, falsely use, transfer, buy and sell the Employment Permit and the Employment License, the labor administrative authorities shall take over the Employment Permit and the Employment License in question, confiscate the illegal proceeds and impose a fine between RMB 10,000 and RMB 100,000. In serious cases which constitute a crime, their criminal responsibility of perpetrators shall be looked into by the judicial authorities.
According to Rules for the Administration of Employment of Foreigner in China, for foreigners who refuse to have their Employment License inspected by the labor administrative authorities, change their employers and professions at will or extend their term of employment without permission, the labor administrative authorities shall withdraw their Employment Permit and recommend that their residence status be canceled by the public security organs. In case of deportation, the costs and expenses shall be borne by the said foreigners or their employer. For foreigners and employers who forge, alter, falsely use, transfer, buy and sell the Employment Permit and the Employment License, the labor administrative authorities shall take over the Employment Permit and the Employment License in question, confiscate the illegal proceeds and impose a fine between RMB 10,000 and RMB 100,000. In serious cases which constitute a crime, their criminal responsibility of perpetrators shall be looked into by the judicial authorities.
The procedures of applying for the Employment License and Employment Permit.
1) To apply for Employment License before he or she enters into China.
2) To go through formalities with Shanghai Municipal Foreign Trade and Economy Committee or Foreign Affairs Office of Pudong New Area for the Z visa notification of the foreigner.
3) Foreigner with permission to work in Shanghai shall apply for the Z visa at the Chinese embassy by presenting his or her passport, Employment License and letter of visa notification.
4) After entering China with Z visa, the foreigner shall make a health examination at Shanghai Exit-Entry Health and Quarantine Bureau.
5) Foreigner shall apply for the Employment Permit after passing the health examination and receiving permit at Shanghai Exit-Entry Administration Bureau.
6) Foreigner who receives Employment Permit shall go through formalities for the residence permit at Shanghai Exit-Entry Administration Bureau.
2) To go through formalities with Shanghai Municipal Foreign Trade and Economy Committee or Foreign Affairs Office of Pudong New Area for the Z visa notification of the foreigner.
3) Foreigner with permission to work in Shanghai shall apply for the Z visa at the Chinese embassy by presenting his or her passport, Employment License and letter of visa notification.
4) After entering China with Z visa, the foreigner shall make a health examination at Shanghai Exit-Entry Health and Quarantine Bureau.
5) Foreigner shall apply for the Employment Permit after passing the health examination and receiving permit at Shanghai Exit-Entry Administration Bureau.
6) Foreigner who receives Employment Permit shall go through formalities for the residence permit at Shanghai Exit-Entry Administration Bureau.
Part-time job?
Q: I’ve been working in a local company for years, being a holder of a valid Employment Permit. Can I leave for another company or have a part-time job with this Employment Permit if there is an offer?
A: No. According to relevant regulations, a foreigner can only work for the employer registered on the Employment Permit. The state of being employed by a second employer is illegal unless those employers are invested by a same investor. Therefore, the correct procedure of changing employer shall be as follows:
a) you shall resign from your employer according to the terms mentioned in your employment contract, and get agreement by the employer;
b) the new employer shall apply for the amendment of your Employment Permit and residence permit with relevant documents;
c) then you can start working for the new employer.
A: No. According to relevant regulations, a foreigner can only work for the employer registered on the Employment Permit. The state of being employed by a second employer is illegal unless those employers are invested by a same investor. Therefore, the correct procedure of changing employer shall be as follows:
a) you shall resign from your employer according to the terms mentioned in your employment contract, and get agreement by the employer;
b) the new employer shall apply for the amendment of your Employment Permit and residence permit with relevant documents;
c) then you can start working for the new employer.
Foreigners are not allowed to work in China with F or L visa
Q: I entered China with an L or F visa, and can I start working within the validity of this visa if there is a company who intends to employ me?
A: No. F visa can only be used for business trip or visiting, while L visa for tourism. The employer has to go through formalities for employment procedures if it intends to employ you.
A: No. F visa can only be used for business trip or visiting, while L visa for tourism. The employer has to go through formalities for employment procedures if it intends to employ you.
Friday, May 25, 2007
Residence Permit for Dependent
Q: My spouse is permitted to work in Shanghai, and I also live in Shanghai with a residence permit for dependents. Being a holder of valid residence permit, can I work for a company if it intends to employ me?
A: No, you cannot work for any employer as long as you reside in China a dependent. The state of being employment is not legitimate until employer obtains your Employment License and Employment Permit at relevant authorities, and changes your purpose of residence from dependents to employment.
A: No, you cannot work for any employer as long as you reside in China a dependent. The state of being employment is not legitimate until employer obtains your Employment License and Employment Permit at relevant authorities, and changes your purpose of residence from dependents to employment.
Thursday, May 24, 2007
Foreigner assigned to work in China
Q: I am going to be assigned by oversea headquarter to work for a foreign-invested company in Shanghai, and I sign my contract with the oversea headquarter that pays me salary. In this situation, is it necessary for me to go through formalities for employment certificates?
A: If the remuneration of assigned foreigner is paid abroad, he or she may be exempted from the Employment License and Employment Permit, provided he or she will work for less than 3 months in China. However, if the working period will be more than 3 months in a year, application for Employment License and Employment Permit has to be made.
A: If the remuneration of assigned foreigner is paid abroad, he or she may be exempted from the Employment License and Employment Permit, provided he or she will work for less than 3 months in China. However, if the working period will be more than 3 months in a year, application for Employment License and Employment Permit has to be made.
How to work legally in China?
Q: I have been told that foreigner who intends to work in China shall apply for employment permission, obtain Employment License, and then apply for Employment Permit. How to apply for those two certificates? Can I start working for my employer after receiving my Employment License?
A: If employment is going to occur between the employer in Shanghai and a foreigner, the employer shall apply to the Labor Bureau of Shanghai for Employment License before the entry of the foreigner. After the application is approved, Employment License of the foreigner shall be granted to the employer. Then the employer shall visit authorized organizations and go through formalities for the Z visa notification. After the entry of the foreigner with Z visa, the employer shall apply to the Labor Bureau of Shanghai for the Employment Permit with relevant documents such as the Employment License, then apply to the entry-exit administration department for the residence permit by presenting the Employment Permit. Only on completion of these procedures can the foreigner work and reside in Shanghai legally. Employment between holder of a mere Employment License and employer is illegal.
A: If employment is going to occur between the employer in Shanghai and a foreigner, the employer shall apply to the Labor Bureau of Shanghai for Employment License before the entry of the foreigner. After the application is approved, Employment License of the foreigner shall be granted to the employer. Then the employer shall visit authorized organizations and go through formalities for the Z visa notification. After the entry of the foreigner with Z visa, the employer shall apply to the Labor Bureau of Shanghai for the Employment Permit with relevant documents such as the Employment License, then apply to the entry-exit administration department for the residence permit by presenting the Employment Permit. Only on completion of these procedures can the foreigner work and reside in Shanghai legally. Employment between holder of a mere Employment License and employer is illegal.
Q: I wish to work in Shanghai, China one day. Are there any prerequisites for me to fulfill my plan?
According to the government regulations, any foreigner seeking employment in China shall meet the following conditions:-
a) Between the age of 18 and 60 for male and between 18 and 55 for female;
b) In good health;
c) With professional skills and job experience required for the work of intended employment;
d) With no criminal record;
e) A clearly-defined employer;
f) With valid passport or other international travel document in lieu of the passport.
a) Between the age of 18 and 60 for male and between 18 and 55 for female;
b) In good health;
c) With professional skills and job experience required for the work of intended employment;
d) With no criminal record;
e) A clearly-defined employer;
f) With valid passport or other international travel document in lieu of the passport.
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