Some Interesting Changes of the New Labor Contract Regulation of Jiangsu Province Go back »
2013-06-28 | Nanjing
Define Suspension of Contract to Prevent Disguised Dismissal
According to Article 30 of the New Regulation, parties may suspend the contract under the following four conditions: parties reach a consensus of suspension through consultation; the laborer’s personal freedom is legally restricted due to suspected crimes; the contract is suspended by force majeure; other circumstances provided by law or state regulation. During the suspension term, the labor relationship is persistent. However, the New Regulation does not mention a time limit of the suspension term and as a result some employers may suspend the contract indefinitely to prevent the employees back to work and to avoid paying remuneration and social insurance. When the suspended condition disappears, the labor contract shall restore to perform unless it is impossible to do so: in other words, the employee will not lose his job without any reasonable reasons.
Stipulate Labor Dispatch to Protect the Interests of Laborers
National labor contract law just regulates the positions of labor dispatch, which generally is temporary, auxiliary or substitutable. Article 36 of the New Regulation further specifies that the ratio of dispatched employees in a company shall not be more than 50% of the total number of employees: therefore the amendment will regulate the actual disordered situation in which some employers expand the scope of dispatch of employees in order to reduce costs. Moreover, this article also stipulates that employers shall pay the social insurance, which is a benefit to dispatched employees that is not always recognized, due to the fact that the treatment between dispatched employees and official ones is totally different.
Add the regulation of interns to establish the social responsibility of the company
In practice, schools assign students as interns to work temporarily in a company through agents or staffing firms: this situation is now forbidden by the Article 42 of the New Regulation. Graduates may be interns as well, but there is a risk that there might be an actual labor relationship due to the fact that graduates have the right to establish working relationships with the same wages and social insurance as normal employees. Because interns are not labors in legal sense, there is no legal labor relationship between interns and employers, even if it is a fact that interns work overtime with low salary. Article 42 states that employers shall pay compensation to interns which shall not be less than the lowest local standard. Besides, employers shall not arrange an internship over 12 months totally, nor work over eight hours per day and forty hours per week. The article also set that is responsibility of employers to buy accidental injury insurance for interns, since it not only protects the interests of interns, but also helps the employers to establish their social responsibility.
New Regulation of High-temperature Subsidy
As it is known, in summer the temperature will rise above 35 degree Celsius and high-temperature climate not only harms people’s health, but it may also provoke accidents more easily. Considering this situation, Article 23 of the New Regulation specifies that if employers arrange employees to work under the high temperature climate or operation, they shall take cooling measures and pay high-temperature subsidy and job allowance. This article is a compulsory regulation and a humane clause which considers the health condition of employees while they work under this specific condition.
In conclusion, the New Regulation demonstrates many progresses in the field of labor contract law since it not only protects the interests of employees, but also establishes the image of social responsibility of employers. The New Regulation will guide the labor contract system to a new world in Jiangsu Province and the entrepreneurs are urged to verify their employment situation in order to comply with the regulation and avoid possible consequences, such as impose a fine (RMB 100-500), pay compensation, administrative sanction, and even criminal liability.
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©2013 Picozzi & Morigi Law Firm
Source: ©2013 Picozzi & Morigi Law Firm
