Tianjin court releases updated guidance on hearing labour disputes

In November 2017, the High People’s Court of Tianjin released the Guidance on Hearing Labour Dispute Cases for Courts in Tianjin (Guidance), which provides for specific issues about hearing of labour dispute cases by courts of competent jurisdiction in Tianjin, including the acceptance of labour dispute cases, determination of employment relationships, and the conclusion, modification, rescission and termination of labour contracts, wages and benefits. Effective from 1 January 2018, the Guidance comprehensively reviews criteria applied by judges of Tianjin in hearing labour dispute cases, is mindful of protecting both employers and employees, and reflects the autonomy of the parties. Below is the interpretation of several relevant articles.

Continuing to use services of an employee who has reached retirement age may constitute an employment relationship under special circumstances. The question of whether the continued employment of a retiree constitutes an employment relationship has been controversial. According to the Implementing Regulations for the Labour Contract Law, when an employee reaches the statutory retirement age, his labour contract shall terminate. However, pursuant to the Labour Contract Law, the labour contract will not terminate until the employee receives benefits under the basic endowment insurance scheme.

The Guidance provides more detailed rules. It says that a labour service relationship shall be deemed existing if an employer uses the services of an employee who is receiving retirement pay or benefits under the basic endowment insurance scheme; however, an employment relationship shall be deemed existing if an employee of statutory retirement age still has not received retirement pay or benefits under the basic endowment insurance scheme due to any reasons attributable to the employer while the employer utilizes the services of the employee.

Patrick Gu is a partner at DaHui Lawyers