Law and Fair Work in China by Sean Cooney Sarah Biddulph Ying Zhu

Author:Sean Cooney, Sarah Biddulph, Ying Zhu [Sean Cooney, Sarah Biddulph, Ying Zhu]
Language: eng
Format: epub
Tags: Social Science, Ethnic Studies, General
ISBN: 9780415674072
Google: 65xanNEYPk8C
Publisher: Routledge
Published: 2013-01-15T05:46:19+00:00

The scope of the Labour Contract Law

While clearly not a definitive answer to the gaps and enforcement problems left over from the Labour Law, the Labour Contract Law clearly improves the regulatory framework for work in China and, by means of its formalization measures, seeks to ensure that the terms and conditions of millions of individual workers are readily identifiable and accessible, not only for the parties to labour relationships but also for enforcement agencies.

Nonetheless, the Law reproduces the conceptual frame set out in the Labour Law. Like that Law, it avoids the Chinese terminology of ‘employment’ (although these terms are universally deployed in English translations), continuing instead to refer to ‘work units’ (用人单位) and ‘persons engaged in labour’ (劳动者). As we discussed in Chapter 4, this means that persons such as agricultural workers, students, home workers and independent contractors continue to be excluded.9 One exclusion is, however, addressed. This concerns the position where a work unit is not validly registered and thus is unlawful. As we have seen, where workers are engaged by individuals, the standards in the Labour Law and the provision of the Labour Contract Law cannot apply, since individuals are not ‘work units’.

One obvious solution to this problem is to enable a labour contract to be concluded with an individual; the Labour Contract Law eschews this, presumably because it would radically alter the conceptual framework underlying Chinese Labour Law. It adopts instead a second best, but ingenious, solution, which first appeared in the provincial wage regulations developed during the Wages Campaign discussed in Chapter 5. That is, if a worker has performed services for an unlawful entity, the entity or the individuals who have contributed capital to it must pay outstanding remuneration and economic compensation to the worker for loss caused (article 93).

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