Opinion

Make law work for foreign workers

By Sun Lin and Cui Yana (China Daily)
Updated: 2010-08-19 17:02

In the new box office hit The Karate Kid, known as The Kung Fu Kid in China, an American boy from recession-hit US city of Detroit moves to China with his mother, who finds a job in a thriving Chinese factory. The plot indirectly reflects Westerners' concern over their economic downturn, as well as China's rise. The film, which though totally overturns the traditional migration pattern in modern history, more or less mirrors a new economic development trend.

In the past, nearly all foreigners who worked in China were high-end talents. This is one reason why some Chinese companies still hire Westerners, especially Caucasians, to act as "bosses"; it enhances their image by giving them an "international profile".

In fact, more and more foreigners have been flocking to China for jobs, particularly after the global economic crisis. Till late 2009, about 223,000 foreigners were holding Alien Employment Permits. An increasing number of foreigners today are working in Chinese metropolises as ordinary employees rather than bosses. This not only shows the huge attraction of China's economic vitality, but also exposes some legislative problems in regulating foreign employees in the country.

The number of foreigners working in Shanghai has reportedly increased 13 times since 1996. About 80 percent of them come from the developed world such as the United States, Japan, the Republic of Korea, Singapore, Canada, Australia and European countries. Some 32.1 percent of them are corporate executives, 7 percent hold senior technical positions, 45.9 percent are general managers and 9.7 percent work at the mid-professional level. And 68.76 percent of these foreigners hold a bachelor's or higher degree, and 20.43 percent have a master's or post-master's degree.

In Shenzhen, Guangdong province, some 80,000 employment licenses had been granted to foreigners by 2008, with 55 percent of them being concentrated in the manufacturing sector.

In recent years, more and more foreigners from Southeast Asian countries have found jobs in Shenzhen, and they comprise not only wealthy investors and senior marketing and technical executives, but also unskilled workers.

The existing laws and regulations on the employment of foreigners in China include the Law of the People's Republic of China on Control of the Entry and Exit of Aliens (1985), Administration of Foreigners Working in China Provisions (1996) and Rules for the Administration of Employment of Foreigners in China (1996).

But with the deepening of reform and opening up and the changing profiles of foreigners employed in China, some of these regulations, formulated more than 10 years ago, cannot effectively meet the current requirements.

For example, the Administration of Foreigners Working in China Provisions stipulate that the post which a foreigner holds in a company should require special skills and knowledge for which there is a temporary shortage of suitable candidates in China and which does not violate relevant State regulations.

According to the provisions, Chinese employers can only hire rare talents from abroad, such as special managerial or technical personnel or professionals in emerging fields. But in recent years, especially since the global financial crisis and economic recession, the number of foreign workers (as well as students) in China has gone up drastically, many of who, according to the authors' knowledge, are not rare talents.

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.