China Labour Bulletin is frequently contacted by foreign teachers in China who are owed wages in arrears or who have suffered other violations of their labour rights.
The problem is particularly severe in China’s private education sector, and conditions have deteriorated to the point that in June last year, the China Law Blog recommended that foreign teachers simply did not work in China.
Complaints from teachers have increased further still this year as the coronavirus pandemic closes schools and places an even greater strain on the economic viability of over-extended private education companies. Just in the last month, CLB’s Strike Map recorded collective protests related to wage arrears at private schools and colleges in Dalian, Beijing, Chengdu and Shenzhen.
While CLB cannot get directly involved in foreign teachers’ wage arrears cases, we have outlined some steps below that foreign teachers might take to protect their rights.
The first thing to note is that the non-payment of wages is a fundamental violation of China’s Labour Law and that employees have, on paper, numerous avenues of redress available to them. Article 91 of the Labour Law states, for example, that if wages are delayed or underpaid: “the local labour department will instruct the employer to pay labourers wage remunerations or to make up for economic losses, and may even order it to pay compensation.”
Quite often, unscrupulous employers in private education institutions will refuse to sign a proper employment contract with employees. If this is the case, under Article 82 of the Labour Contract Law, the authorities may demand that the employer pay double the amount of wages owed as punitive damages.
Before approaching the local labour authorities, however, the employee should gather as much written documentation as possible; employment contract (if available), pay stubs, attendance cards, work permits etc., which can prove a labour relationship with the employer. If your Chinese is limited, it is vital that you find a trusted local colleague or friend who is willing to help.
Even though foreign teachers may not be members of a trade union in China, Article 22 of the Trade Union Law does state that if an enterprise violates the rights of an employee by not paying wages, “the trade union shall, on behalf of the workers and staff members, make representations to the enterprise or institution and demand that it take measures for rectification.”
If the local union declines to intervene or the employer refuses to negotiate with the union, employees can also go to the local labour inspectorate and formally request the payment of wages as soon as possible through an administrative intervention. The labour inspectorate is legally obliged to issue a written reply to the employee within two months.
If the labour inspectorate cannot help (they may claim foreign teachers are not within their remit), the employee can file for arbitration at the local labour dispute arbitration committee. Article 77 of the Labour Law states that: “In case of labour disputes between the employer and labourers, the parties concerned can apply for mediation or arbitration, bring the case to court, or settle them through consultation.”
Arbitration is a relatively inexpensive procedure but if the case goes to civil court, time and legal expenses will increase considerably. If you need to hire a local lawyer, it is essential that they have a good grounding and experience in labour dispute cases. Employees can also apply for legal aid from the local trade union and through other channels if needed.
Since there may also be special provisions related to the employment of foreign nationals, it is recommended that teachers contact their local embassy or consulate as well.