Been writing this for ages, will add to it over the next few days. It’s about employment contracts and my experiences with them in China.
The concept of written contracts is a relatively new concept to China and as such the options for legal redress and peoples interpretation of them is not as a westerner would expect.
If (legally) working in China you will sign a contract at some stage. If working for a public body you will sign a government standard contract written by the State Administration of Foreign Experts Affairs (SAFEA) in Chinese and English.
This is in the form of a small book, inside the first page contains the salary information and how much RMB can legally be changed to foreign currency. This has to be signed and dated and red stamped by the host institution to be valid. This will be registered with the SAFEA and means that if you have serious problems you can use them to arbitrate – not that they will help you! 😥
Legally speaking It’s a particuarly badly translated contract and is badly worded, but as translation standards go in China, It’s better than most.
You will also have an annex or another contract that is written by the Institution you will work for, this contains the most important things to you as an employee. It will be several A4 pages long and also in Chinese and English.
Make sure that everything you want in this section is written in 100% unambiguous language.
Words like can, should or might do not belong in a legal agreement!
If need be, list in bullet points on everything you expect your employer to do for you. Make sure everything is precise, from EXACT paydays to when you are entitled holiday pay – and which day you will receive this. The emphasis is on making your employer react in a positive way, i.e have to do something.
Never leave things to be assumed through implication, there has to be a positive burden on the employer to act.
Do not assume anything, even things that are implied through conduct of one or other of the parties – WILL NOT NECESSARILY MEAN that you should be owed something. Many Chinese bosses only just understand the idea of offer and acceptance – trying to use western legal concepts will almost certainly fail.
An option is to try recording what your employer says to you, as this may give you quid-pro-quo if your employer denies he/she said something to you at a later date.
Unfair Contract Terms:
Make sure you don’t sign something that could cause you to lose pay for something that was out of your control. The below clip is from a Star Education contract, It’s a classic example of an unfair contract term:
If you agree to this then – for example – If on the way to work you were in an accident and you were last for class, you would still face a financial penalty.
As a rule if a term is written for one party to do or not to do something, then there should be something similar relating to the other party.
I’ve seen some pretty one-sided contracts In China, contracts that protect the employers rights for pretty much anything yet ignoring the same such rights for employees. In my experience, with the public schools, Universities and colleges in Changchun the contracts have been fair and straight forwardly written. Infact they are petty much verbatim copies of the Government recommended contracts issued by the SAFEA.
Private schools and Companies are another matter. I once saw a contract that was 6 pages long, full of clauses and terms imposing one-sided obligations on the employee, but not emposing such obligations on the employer. For Chinese employees this is normal, they often have to sign completely one-sided contracts of employment – but for foreign teachers this is should not be the case. Anyone telling you otherwise is not telling the truth.
Sometimes in those terrrible contracts (this is quite common for Chinese employees) the employer will try to keep a 3 month ‘bond’ on the employees salary – i.e Your employer keeps 3 months pay until the contract is completed, whereupon you get it back. Or, more likely the employer can steal 3 months of your pay and not give it back to you because after you’ve finished your contract you have exhausted any quid pro quo you might have had before the contract finished.
Some say this is to protect the employer from teachers running from their employers, but I say If you have worked, you get paid AFTER you have worked. You are not paid in advance, therefore the employer will lose very little. Employes seldom pay for flight-ticket up-front. The employer will at most lose a few hundred yuan for sponsoring the visa. If i see these type of contract terms, I run a million miles!
Of course you want to avoid getting into a bad situation in the first place, probably the best way to do this is to seriously research your potential job.
When negotiating your contract don’t be rushed into signing the agreement. Get the contract altered if needbe, come back with your counter-proposals. What you mustn’t do is accept the first thing you are offered by the employer, always try to get more than what they initially offer and meet them half-way if you can.
Get It written down in the contract, in plain English. Verbal agreements are worthless.
Afterall, If they mean what they say then there is no-problem getting it in writing, right?
I have had many situations where the employer has said something, or promised something but not actually wanted to write it into the contract. The reason for this is that they probably cannot deliver on what they say but still want you to sign the contract and will say anything that makes you put pen to paper!
In many situations you should be aware that employers like to ‘speak big words’ but fail to deliver when It comes to the crunch, getting it into the contract will help you if a situation like this occurs.
This is of course misrepresentation but In China you cannot rely on western legal concepts – forget the rule of law, forget an equitable solution. You have to protect your own interests first. Or you will only have yourself to blame further down the line.
Get it signed by both parties and preferably have a 3rd person present to Co-oberate what was said.
Get in touch with people that are working for them now, people that have previously worked for them – get as much information as possible from as many sources as possible. Yoy may search for them on the internet, check out forums, chatrooms, blogs to enable you to have the full picture, before making the decision to sign a contract.
This is difficult as some people will say bad things about a particular place because of reasons known to them not necessarily because of their employer. Many foreigners come to China, don’t like what they see, fail to adapt to the situation and end up leaving after a semester with a bad taste in their mouth.
There are also many people who genuinely have tebbible situations with their employer through no fault of their own, who are lied, cheated, threatened and all sorts of other horror stories.
You can find many of these on the web – people tend to write more vividly about the bad stories they’ve had than the positive ones. This may also be because there are – certainly in Changchun anyway -more bad places to work than good.
The big problem with teaching contracts in China is not just that they can be broken It’s that the contracts are virtually unenforcible if one or other (or both) of the parties chooses to break it.
Chinese people and anybody that has been in China long enough knows this and so this is something that must always be considered when signing an agreement.
You must consider when signing the contract ‘what will my employer get from this?’ ‘What will I get from this?’ – If it’s too one-sided or looks too good to be true, then it most probably is!