China Releases Interpretations on the Application of Law in Labor Disputes

Feb. 4 – The Supreme People’s Court of China released its “Interpretation on Several Issues Regarding the Application of Law in the Trial of Cases Involving Labor Disputes (IV) (fashi [2013] No. 4, hereinafter referred to as the ‘Interpretation’)” on January 18, 2013, clarifying several issues concerning the application of laws when labor disputes are brought to trial. Detailed information can be found below.

Where a labor dispute arbitration committee (hereinafter referred to as the “Committee”) refuses to accept a labor dispute case on the grounds that it has no jurisdiction over such disputes, and either party concerned then brings the claim before the People’s Court, the People’s Court shall:

• Inform the party concerned to apply for arbitration with the Committee that previously refused to take up the case if it finds, upon examination, that the Committee actually has jurisdiction over the case
• Inform the party concerned to apply for arbitration with a competent labor dispute arbitration committee if it finds, upon examination, that the Committee indeed has no jurisdiction over the case

Where an employer and an employee fail to make modifications to a labor contract in writing, and then either party claims the modified contract is invalid on the grounds that modifications to the contract have not been made in writing, such claims shall not be supported by the People’s Court under the following circumstances:

• Both of them have actually performed the verbally-modified contract for more than one month
• The modified contract is not in violation of laws, administrative regulations, State policies and public order

In situations whereby a foreigner, stateless person or a Taiwan, Hong Kong or Macau resident signs a labor contract with an employer in Mainland China without obtaining the proper work permit, the relevant People’s Court shall not uphold requests from such employees to confirm the existence of a labor relation with the employer.

Labor relations may be confirmed if a foreign national holds both a Foreign Expert Certificate and a Work Permit for Foreign Experts, and has entered into employment relations with an employer within Mainland China.

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