Four Types of Workers Exempt from Protection

You have got a job, but you have not entered an employment relationship with your employer. When you get injured at work, you might find yourself having no legal recourse.

Not long ago, Beijing’s Haidian District Law Court put out an employment survey, warning that the following types of persons are not entitled to enjoy the protection of the Labour Law.

1. Moonlighting students

Case study:

Little Lee was doing her Masters Degree at a full-time college. During her study, she got a part-time job with a training institution. Not long afterward, she had a dispute with her employer. She took her employer to court for on the grounds that he had not signed a contract with her and demanded a compensation twice the amount of her monthly salary. To her disappointment, the court rejected her claim for compensation as she could not prove her relations with the training institution.

The judge’s interpretation: Little Lee is 16 years of age, which meets the conditions for establishing a labour relationship, but she is a full-time student moonlighting as a Chinese language teacher. Therefore, a student taking a part-time job or internship off campus generally can not be defined as having formed a labour relationship.

2. Workers reemployed after retirement

Case study:

Mr. Lin was a technician of an enterprise. He was pensioned off when he reached the age of 60. As his company was carrying out technical renovation, he got rehired as a technical supervisor. However, as his company refused to offer overtime pay and paid holidays, he decided to go to arbitration. Yet the arbitration court could not hand down a decision because there was no contract between him and his company.

The Judge’s interpretation:

The Labour Contract Law stipulates that a labour contract may be terminated when an employee has begun to enjoy the basic benefits of his pension. In addition, the relevant judicial interpretation plainly states that if a dispute arises between an employer and his rehired employee over the latter’s employment, a law court should handle it according to the Labour Contract Law. Therefore during his reemployment, Mr. Lin could only enter an employment relationship with his employer and the overtime pay and paid holiday which Lin demanded are rights provided for in the country’s Labour Law and Labour Contract Law. Under such circumstances, the court suggested that reemployed workers should sign a contract with their employers setting out specific and definite stipulations on wage standards and methods of calculation in case they have no legal recourse to resort to if a dispute occurs.

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  Source: ACFTU  2015-08-13

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