18 March 2015
Ways of Staff Recruitment
Under China’s new Labour Contract Law, enterprises can decide for themselves the timing and means of recruiting staff as well as the relevant requirements and number. At present, enterprises may hire staff through various channels.
Public Employment Service Organs and Employment Agencies
(a) Public Employment Service Organs and Employment Agencies
At present, the majority of public employment service organs in China are organisations under labour and social security departments as well as personnel departments. They can provide the following services according to the requirements of employing units: (1) guidance in staff recruitment; (2) staff recruitment; (3) cross-regional staff recruitment; (4) professional services such as corporate human resources management and consultancy; (5) commissioned service for labour and social security affairs (approval of labour and social security department at county level or above is required); and (6) other employment service items as required by employing units.
There are also profit-making employment agencies run by enterprises, organisations and individuals. These agencies are usually called “employment centre”, “human resources market” etc. In recent years, head-hunting companies specialising in recruiting high-calibre senior executives have also emerged.
(a) Points to Note
Before using the service of an employment agency, an enterprise may request the agency to provide proof of its legal status, approval certificate issued by the labour administrative department, information on the scope of service, charge standards, name and telephone number of its supervisory authorities etc.
When appointing an employment agency, an enterprise should present a letter of introduction on the enterprise itself, its business licence (copy) or other proof of registration as a legal entity, a profile on recruitment requirements, identity document of the person-in-charge of the recruitment exercise, and proof of commission by the employing unit. The profile on recruitment requirements should contain information such as an introduction of the enterprise, number of staff to be recruited, job duties, terms of employment, remunerations, fringe benefits, social insurance coverage and other information prescribed by laws and regulations.
FIEs which have not applied for incorporation and have only set up representative offices or offices in China are not in a position to directly recruit staff. They can only recruit staff through foreign enterprise service companies authorised by the state. Technically speaking, employees working for representative offices are not the staff of these offices but are the staff deployed by the foreign enterprise service companies to work at the representative offices. Representative offices must sign labour contracts with foreign enterprise service companies with regard to the deployment of staff to work at the representative office. Since Chinese staff working at the representative offices of FIEs in China are paid their wages and benefits through foreign enterprise service companies, foreign enterprise service companies charge certain fees. Representative offices can sign a supplemental agreement with their Chinese staff on specific labour issues.
With the prior approval of the local labour and social security department, an enterprise may place recruitment ads in the mass media such as newspapers, magazines, and radio/TV stations. Without such approval, recruitment ads are not permitted to appear in the news media.
Human Resources Fairs
Currently, human resources fairs are a popular way to recruit employees in China. These events are specifically organised for enterprises to recruit staff, such as senior executives recruitment fairs, FIE staff recruitment fairs, and dedicated interview sessions with university graduates. These events are usually organised by employment agencies with participating enterprises setting up recruitment booths and job seekers admitted for a fee.
Enterprises planning to hire staff through these fairs should consider various factors such as whether the events are well organised and the reputation of the organiser.
Office Premises and Corporate Website
An enterprise may use free channels such as its own office premises and website to release recruitment news.
Labour Dispatch Entities
(a) Labour Dispatch Entities and Dispatched Workers
According to the Provisional Regulations on Labour Dispatch which took effect on 1 March 2014, employing units may only use dispatched workers for temporary, auxiliary or substitute job positions.
Temporary positions are positions that exist for no more than six months; auxiliary positions are non-core business positions that provide support to the company’s core business; while substitute positions are those filled by dispatched workers because the regular employee in the position is absent from work because of off-the-job education, leave of absence, etc.
An employing unit must first discuss with the workers' congress or all employees and put forward proposals to the trade union or workers' congress for discussion and adoption on an equal footing before deciding to use dispatched workers. A public announcement must also be posted within the unit.
(b) Points to Note
Dispatched workers may not make up more than 10% of an employing unit's workforce.
An employing unit that employs dispatched workers exceeding 10% of its workforce before the Provisional Regulations on Labour Dispatch come into force shall draw up a plan for adjustment of employment and report the plan to the local administrative department for human resources and social security for recordation and shall reduce the number to the required percentage within two years of the promulgation of the Provisional Regulations. It may not employ new dispatched workers before the number is reduced to the required percentage.
The resident representative offices of foreign companies, the representative offices of foreign financial institutions in China and employers who use international seafarers by labour dispatch are not bound by the requirements on using dispatched workers only for temporary, auxiliary or substitute positions and the percentage of dispatched workers when using dispatched workers.
Points to Note Regarding Staff Recruitment
When an employing unit hires a worker, it should in accordance with the law truthfully inform the worker of the job duties, conditions of work, place of work, occupational hazards, safe production conditions, remunerations and any other matters that the worker wishes to know. The employing unit has the right to know the basic data of the worker that are directly relevant to the employment contract. The worker is obliged to provide such data truthfully.
The employing unit should keep the personal data of the worker in strict confidence. Before disclosing a worker’s personal data or using his/her technological or intellectual works, the employing unit should seek the written consent of the worker concerned. The employing unit should not hire workers by inappropriate means such as defaming other employing units or commercial bribery.
In hiring a Taiwan, Hong Kong or Macau resident, an enterprise should report to the local labour and social security department and apply for an Employment Permit for Personnel from Taiwan, Hong Kong and Macau for the employee. In hiring a foreign national, an application for a People’s Republic of China Employment Permit for Foreigners should be made to the local labour and social security department before the foreign national arrives in China and the appointment can only commence after the application is approved and the employment permit is granted.
When hiring workers for special job types involving public safety, personal health, and life and property safety, the employing unit should hire people who hold vocational qualification certificates of the relevant job types; otherwise, arrangements should be made for the workers to receive special training and obtain the necessary vocational qualification certificates before they could start work.
An employing unit may not refuse to hire female workers or raise their eligibility criteria for the sake of their gender provided that the job types or positions concerned are not deemed by the state as inappropriate for women. An employing unit may not refuse to hire people who are carriers of infectious disease causative agents. However, people who carry causative agents must not engage in activities that are deemed by laws, administrative rules and the State Council’s health departments to have high risk of spreading the infectious disease, until it has been clinically proven that the people concerned have been cured of the disease or the risk of transmitting the disease to others has been cleared.
On 10 February 2010, the Ministry of Human Resources and Social Security issued the Notification on Further Regulating the Physical Examination to Maintain Hepatitis B Surface Antigen Carriers' Rights of Education and Employment, which stipulated that, other than certain special occupations approved by the Ministry of Health, employing units shall not reject, dismiss or terminate workers based on the reason that they are carriers of hepatitis B surface antigen.
Any employing unit committing the following acts in recruiting staff is in violation of the law:
(1) Providing false information with regard to staff recruitment or posting false job advertisements;
(2) Withholding the identity card or other documentations of the recruits;
(3) Demanding money or valuables from applicants as guarantee;
(4) Hiring people under the age of 16 or people prohibited from taking up employment by state laws and administrative rules and regulations;
(5) Hiring people without legal identity documents;
(6) Making improper economic gains or carrying out illegal activities under the pretence of recruitment.