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In the case of the WWW.8888VISA.COM service, a foreign client asked if he needed to change his employment permit if he had changed his company and his work permit was still valid. Foreign clients feel that changing the ID card is very troublesome, but it is necessary to change the ID card. To change the ID card is a guarantee for them. WWW.8888VISA.COM shared a case today, hoping that companies HR or management can take it as an example to protect foreign employees while protecting the company.
Basic facts
Zhang, a Malaysian national, arrived in Beijing on Nov. 10, 2016 as the sales director of a company in Beijing, The two parties signed a written labor contract, agreed on a monthly wage of 50,000 yuan, Zhang Mou normal to provide labor until May 30, 2017. The company has not paid a certain salary since February 2017 because of poor management. On 1 June 2017, Zhang lodged an application with the company to terminate the labor relationship on the basis of the company's non-payment of wages, and filed an application for arbitration to confirm the existence of a labour relationship with the company and the payment of arrears of wages by the company.
During the trial, Zhang submitted his Alien Employment Certificate, The document indicates that it was valid from 12 June 2014 to 12 June 2015 and was subsequently extended to 12 June 2017; Professional sales director, the work unit for a Shanghai company Beijing branch; The change registration page does not show a change.
controversial focal point
The Employment Certificate of Foreigners shows that the information of the employer is not consistent with the actual employment situation. Is there a labor relationship between the foreigner and the employer of the actual employment?
Outcome of processing
The Arbitration Commission finally ruled that the labor relationship between Zhang and the company was not tenable, and rejected Zhang's request to confirm the existence of a labor relationship between the two parties, but that the company should pay the unpaid labor remuneration.
Case analysis
In China, a foreigner refers to a person who does not have Chinese nationality in accordance with the provisions of the Nationality Law. The term "employment of foreigners" in China refers to the acts of foreigners who have not obtained the right of permanent residence to engage in social labour and obtain remuneration for their work within the territory of China according to law. Article 8 of the Provisions on the Administration of Employment of Foreigners in China stipulates that foreigners who are employed in China shall enter China on the basis of a Z visa, and may only be employed in China if they have obtained the Employment Certificate for Foreigners and the residence permit for foreigners after entry.
According to the above-mentioned provisions, China applies a system of employment permits and registration for foreigners. Foreigners who are employed in China must hold "Alien Employment Permit", "Alien Residence Permit" and "Z" visa. Foreigners who have not obtained an employment certificate are employed within the territory of the People's Republic of China and are not entitled to the rights and interests of workers within the meaning of the Labour Law. According to Article 14 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Labor Dispute Cases (IV), foreigners and stateless persons sign labour contracts with employers in China without obtaining employment certificates in accordance with the law, If a party requests confirmation of the existence of a labour relationship with an employer, the people's court shall not support such a request.The People's Court shall not support the conclusion of a labour contract between a resident of the Hong Kong Special Administrative Region, the Macao Special Administrative Region or the Taiwan Region without obtaining an employment certificate according to law. In this case, Zhang had already obtained an employment certificate and could be employed in China. So only on this point, Zhang and the company's labor relations can be established?
Article 23 of the Regulations on the Administration of Employment of Foreigners in China also stipulates that the employers of foreigners employed in China must be consistent with the units indicated in their employment certificates; Where a foreigner changes an employer within the area prescribed by the license-issuing organ but still engages in the original occupation, approval must be obtained from the original license-issuing organ and the formalities for changing the employment certificate shall be gone through. If an alien leaves the area prescribed by the license-issuing organ for employment or changes the employer within the original area and engages in different occupations, he/she shall go through the procedures for obtaining an employment permit again.
According to the above-mentioned provisions, foreigners may obtain employment certificates in China according to law, but they shall also be employed by the employment units, occupations and regions licensed by the administrative departments, and if there are changes, they shall go through the formalities for modification or go through the procedures for re-employment permits in a timely manner.
In this case, the original unit of Zhang is a Beijing branch of a Shanghai-based company, and later works for a Beijing-based company, and changes the employer, it shall be approved by the original license-issuing authority and go through the formalities for changing the employment certificate. But Zhang did not go through the procedure of changing the employment certificate during the period of employment of a company in Beijing, its employment does not meet the legal requirements, also belongs to illegal employment, the labor relationship between Zhang and a company in Beijing is not established. As Zhang has actually provided labor to the company, the company should pay its remuneration, but Zhang's claim other than remuneration cannot be protected by labor law.
Think outside the box
The adoption of the employment license system and the registration and recordation system for the employment of foreigners in China is intended to safeguard the lawful rights and interests of foreigners in the Mainland, strengthen the administration of the employment of foreigners by employers, and maintain the employment order in China.
In the arbitration practice, it is found that there are many reasons for the foreigners who are employed in China to fail to obtain the employment certificate, some of which do not meet the employment conditions, so they do not cooperate with the employer to go through the relevant procedures. In order to avoid legal liability, some employers do not apply for the employment license for foreigners, thus impairing the lawful rights and interests of foreign employees. Both foreign workers and employers who need to hire foreigners should strengthen their legal awareness. Only when foreign employees know and abide by the relevant legal system, and actively request and cooperate with employers to go through relevant employment procedures, can they safeguard their labor rights and interests; Only if the employer hires foreigners according to law, can it have the right to require the employer to bear the labor legal obligations such as service period, liquidated damages or restriction of business competition, and safeguard the rights and interests of the employer.
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