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New Labor Laws in China Could Hinder Investors’ Profit Potential

By Irwin Greenstein

New labor laws in China have forced the manufacturing sector into an ever-tightening vice, giving investors further pause for any significant rebound in the world’s fastest growing economy.

In January 2008, Beijing introduced new workplace legislation called the Labor Contract Law. Its objective was to ensure job security by making cursory dismissals more difficult. The Labor Contract Law comes in on the heels of anti-discrimination labor laws instituted last year, which streamlined the process for workers to file grievances against their employers. As a result, labor disputes have surged by approximately 119% since last year as workers exercise their new rights.

While the global recession throws a monkey wrench into China’s manufacturing engine, the Labor Contract law could compound the crisis by making labor in China more expensive. In fact, there is evidence that factories are already moving to Cambodia, Vietnam and Bangladesh, which promote owner-friendly labor laws.

If in fact this migration turns into a stampede, China’s entire economy could suffer longer term damage than anticipated.

The higher salaries kicked in at a time when China’s manufacturing sector contracted for the fifth consecutive month in December, according to the CLSA China Purchasing Managers Index. In the first 10 months of 2008, 15,661 enterprises in Guangdong, the manufacturing-heavy southern province, shut down. China’s manufacturing shrank for a third month in December as export demand fell, suggesting a long-drawn-out economic slump.

Manufacturing comprises about 40% of China’s economic output. It comes as no surprise, therefore, that the World Bank forecast in November of last year China’s economic growth may slow down to 7.5% in 2009, the lowest since 1990.

While many of the closures are certainly tied to lower exports, factory owners are simply padlocking their doors rather than conforming to the more restrictive and expensive labor laws – often absconding with the employees’ back pay.

The labor laws also sanction the once-unthinkable notion of labor unions in China. All employees are now eligible to join the China Federation of Trade Unions [ACFTU], which is controlled by the Communist Party and has around 170 million members. The ACFTU is legally entitled to negotiate salaries, working hours, holidays, and benefits (although they are now allowed to strike). By the end of 2006, about 50,000 foreign companies in China entered into collective contracts and the ACFTU has said its goal is to unionize nearly all foreign companies in the coming years.

While unionization and labor laws are long overdue for workers, they also create a new investment climate in China that could reduce windfall profits across the entire economy.

Intel Closes Its Plant but Strengthens R&D in Shanghai

Intel is going to cease the operation of its factory in Pudong, Shanghai and transfer the production capacity to Chengdu or Dalian. Over 2000 employees may be moved to new positions. But Intel claimed that Shanghai office’s role in R&D and investment would be reinforced.

Intel will adjust its plan of production and operation in China, including three factories in Shanghai, Chengdu and Dalian. In the following 12 months, the company hopes to integrate the production capacity of Shanghai factory into the factory in Chengdu.

Intel explained that it did not intend to close the factory, but to optimize its manufacturing resources in China. The company’s production capacity will remain in China. And employees will not be dismissed, but will be offered to transfer to new positions instead.

But an Intel engineer who having worked in Intel’s Shanghai factory for more than three years said this was just same as dismissal, as it would be very inconvenient for many employees to move since they have been working in Shanghai for years and settled their families there. He himself has just got married and bought an apartment in Shanghai last year, and can’t move to other cities. He hopes the company to offer reasonable compensation according to the labor law. But Intel has not revealed how it is going to deal with this matter.

Even accepting job transfer, 2000 employees won’t be able to settle down immediately. Intel’s Dalian factory will be put into production in 2010 the earliest. One of the company’s equipment suppliers disclosed that the production of factory might be delayed by half year. As for the Chengdu factory, due to the global financial crisis, the capacity efficiency hasn’t increased much so that the demand for production expansion is also limited.

The Shanghai factory has been in operation for over 12 years, with a total investment of $539 million, including initial investment and additional investments. The company’s management has emphasized for many times that it would further increase its investment, and that the Shanghai factory is established in line with China’s strategy to develop Pudong.

Intel dismantled its channel platform department in Shanghai last December, and over 200 employees were affected. This department, previously one of Intel’s five global departments, was moved to Shanghai in August 2005, marking the first time Intel setting its global department overseas in the company’s more than 40 years’ history.

Shanghai, Dalian, and Chengdu have long been competing for Intel’s investment in China. This adjustment offended the Shanghai government. ??

Intel said the adjustment was made due to the “influence of the current economic situation”. Before the Chinese New Year the company decided to close five factories globally, including those in Malaysia, Philippines, Oregon, and Santa Clara, California, and about 6, 000 employees were affected. Founded in 1968, the factory in Santa Clara is Intel’s last factory left in Silicon Valley.

Paul Otellini, the president of Intel, said at an internal meeting that the company could not rule out the possibility of making a loss during the first fiscal quarter of 2009. Net loss has never occurred in the company since 1986. Some signs shown in its financial statement for the fourth quarter of 2008 indicated a 23% and 90% year-on-year decline in revenues and net profits respectively.

However, Intel also announced three investment plans, including $110 million additional investment into the registered capital of Intel China Ltd, a Shanghai based investment company, seemingly in order to offset the negative influence of the adjustment. Intel will keep its original plan for other business in China, including factories in Chengdu and Dalian, Intel China Research Center, and Intel Capital China Technology Fund Phase II.

“Shanghai will still be Intel’s most important R&D center and headquarters in China.” Intel emphasized.

Factory Closures Strain China’s Labor Law

SHENZHEN, China — The global economic downturn is testing China’s efforts to improve labor laws, pitting the need to give basic legal protections to 700 million workers against the need to keep businesses afloat.

The country’s economic emergence boosted incomes, but also led to complaints that workers’ rights were being trampled. In response, the central government in January 2008 introduced workplace-protection legislation, known as the Labor Contract Law. The law sought to tighten job security, to make dismissing workers more difficult, and to guarantee severance pay of one month’s salary for each year of employment. Last year, China added new job-discrimination laws and made it easier to file complaints against employers.

But as the global financial crisis hits the heart of the world’s factory floor, labor activists say officials are turning a blind eye to the new requirements. Local governments deny they are becoming lax, yet complaints against employers languish in huge backlogs as many are simply shuttering their factories.

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Migrant workers who returned home from China’s Guangdong Province after losing their jobs look for work at a labor market in Chengdu. One worker advertises that he will take any job.
“The enforcement of the Labor Contract Law is facing new problems,” Hua Jianmin, chairman of the National People’s Congress Standing Committee, China’s top legislative body, said last month at a meeting on the law.

One problem is that China’s manufacturing sector contracted for the fifth consecutive month in December, according to the CLSA China Purchasing Managers Index.

“Pressures from the labor law may encourage factories to close rather than pay what they owe to workers under the law,” says Liu Kaiming, executive direct at the Institute of Contemporary Observation, a Shenzhen-based labor group.

Even before the downturn hit, business groups protested that the new law would be costly and burdensome. Now, workers say companies avoid paying claims by liquidating or by just disappearing without properly settling their business.

In the first 10 months of 2008, say authorities, 15,661 enterprises in Guangdong, the manufacturing-heavy southern province, shut their doors. Over half of those — about 8,500 — ceased doing business in October.

To aid businesses, Beijing has permitted local authorities to freeze minimum-wage levels and to reduce or suspend employers’ social-insurance contributions.

The vice mayor of Dongguan, in Guangdong, says many employers hope the central government will suspend the Labor Contract Law, and his office has sent that request to Beijing. “We can’t ourselves halt the implementation of a national law,” says Jiang Ling.

Giving business such leeway could ultimately undermine trust in the still-developing rule of law, says Andreas Lauffs, a partner at the law firm of Baker & McKenzie who focuses on Chinese labor issues.

The situation keeps workers in limbo at a time when the plight of those unemployed by mass layoffs or illegal factory closings has drawn wide attention. The Chinese media have reported numerous recent incidents of labor unrest, from taxi strikes to protests by factory workers over unpaid wages.

After their factory closed last month, workers from the Shatangbu Yifa Rubber & Hardware Factory in Shenzhen filed for the back pay and severance promised under a contract required by the new law.

The Hong Kong-based owner disappeared, according to Shenzhen officials. That left many migrant workers stranded without enough money to return to their hometowns hundreds of miles away. About a third of the factory’s 300 workers went to the Shenzhen government to request a speedy resolution of their case.

“We are aware of our rights, but we don’t have enough time to go to court. We just want to get paid and go home before the holiday,” said one worker, referring to the Lunar New Year celebration this month.

The former owner couldn’t be located to comment.

Local officials later gave the employees 500 yuan ($73) in back pay from a special fund, but said other claims would have to go through a bankruptcy court.

The state media’s heavy promotion of the new law has resulted in a big jump in labor disputes. In the city of Guangzhou, the local arbitration office received more than 60,000 cases from January through November, about as many as it handled over the previous two years combined. The fast-rising caseload has overwhelmed the system.

“Before, we would try to mediate more disputes before going to arbitration, but now that workers have the right to go to arbitration, they choose to do that right away,” said Huang Huiping, deputy director of the labor bureau in Dongguan. “Right now, the number of labor arbitrators is not sufficient.”

On Jan. 1, central labor authorities introduced new rules to allow arbitrators to give priority to claims filed by more than 10 workers.

China to build 5,000 internship “bases” to prepare youths for job

China is to build up to 5,000 “bases” in 2009 to provide internship positions for the young to better prepare them for the job market as it feels pain amid the global financial crisis.

The Chinese Communist Youth League, a government body for work related to the young, will coordinate in recruiting qualified companies and individuals, the League told Xinhua Monday.

The youth leagues at municipal or provincial levels will select suitable companies to form the “bases”, businesses or sets of businesses which will be able to provide positions for at least 10 interns each year with basic living allowances.

Qualified candidates for the intern positions are job-hunting fresh university or vocational school graduates, those who have failed to find a job since graduation, young laid-off workers, and young migrant workers.

The first group of nearly 2,000 such bases are already selected and made public, offering about 60,000 positions in the industries of finance, publishing, telecommunications, manufacturing and transportation.

The aim of this move is to ease the employment pressure and achieve a win-win situation between the companies and the youths, according to the Youth League.

The Ministry of Human Resources and Social Security (MOHRSS) said on January 20 that there would be 7.1 million college graduates seeking vacancies this year, including 1 million of those having failed to secure jobs last year.

The ministry also said, as of the end of 2008, there were 8.86 million urban residents registered as jobless, 560,000 more than the end of the third quarter.

China’s efforts to lure professionals home

New York, NY, United States, — The global financial turmoil that has led to tens of thousands of job losses in financial services has provided China with a golden opportunity to attract its overseas professionals, especially those at the high end, to return. However, the media coverage of China’s global talent hunt has left me feeling sick.
Here is a summary of what I have read:

A Ms. Yu, 43, who flew all the way from Charlotte, North Carolina, to New York City for a recruiting event, pitched hard to the recruiter sitting in front of her. “I’ve got experience in risk management,” she explained, naming the bank where she had worked and watching anxiously as the recruiter scribbled on her résumé. She breathed a sigh of relief when her résumé was placed in the review pile, implying that she might be called back for another round of interviews.

Close to 1,000 jobseekers traveled quite a distance by either flying or driving up to 10 hours to the New York event. Their wait in line for more than an hour ended up with a three-minute interview.

Some of the jobseekers who had worked in financial services for more than a decade said that their annual salary was somewhere between US$500,000 and $1 million dollars. But potential employers hinted that the highest pay available to them in China would be 1.5 million yuan (US$219,000).

Jobseekers traveled to the recruiting event on their own, waited in line for more than one hour for the opportunity of a three-minute interview, a recruiter scribbled on their résumés, and jobseekers were forced to reduce their salary expectations dramatically. This supposedly serious recruiting exercise seemed to me more like a bazaar where recruiters hoped to pick up cheap Made-in-China stuff, while jobseekers put straw on their heads to indicate they were willing to sell themselves cheap.

This happened because of the information asymmetry between jobseekers and recruiters. The former, who probably had either lost their jobs or feared for their future though still employed, were eager to find a way out. They learned that China needs talent, but did not know exactly what kind of talent is in demand, what positions are open, what credentials and experience are valued, and what compensation packages would be offered. In a word, they came to these events without knowing what to expect.

Indeed, most of those jobseekers left the events empty-handed. After attending a couple such fruitless recruiting events, even those who were seriously thinking of returning to China would have to reconsider their options.

Of course, some jobseekers might be fortunate enough to land a job. But I am not convinced that those with rich overseas experience would be willing to work for significantly lower pay. Those who do not complain about the low pay are most likely not the most talented; the truly talented would surely move to higher paying jobs if they became available. The “you-get-what-you-pay-for” principle applies to global talent as well.

In the meantime, I doubt that the recruiters know what talent they should be recruiting or have the ability to hire proper people. Most likely, those on these overseas missions are not professionals. Even if they are, given that the gap between the Chinese and international financial business is at least 20 years, they would not necessarily understand the expertise of the jobseekers and would have to wait for decisions to be made by their bosses back in China when they interview applicants. Even if they find a suitable person, the recruiters may not be able to hire him or her on the spot.

Therefore, such recruiting events are a kind of “zheteng” – a popular term of 2009, roughly translatable as “wasting time” or “flip-flopping” – for both jobseekers and recruiters.

Since the global recruiting tour is not attractive to true talent, especially experienced and senior-level personnel, and since it could produce nothing more than several kilograms of résumés at best, why are the Chinese so immersed in the practice?

The recruiters would claim that their search shows a respect for talent. In fact, the reality is just the opposite. Talent was valued when Liu Bei, a hero from the famous Chinese classic the “Three Kingdoms,” paid three visits to the cottage of Zhuge Liang, whom he wished to recruit as his adviser. It is not valued in a three-minute interview; sincerity is not shown by doing things carelessly.

Therefore, rather than embarking on an overseas talent hunt, China would be better off following the international norm.

First, Chinese institutions should place advertisements in media or on the Internet with such information as positions available, job responsibilities, working conditions, compensation and number of recruits required. If there are appropriate applicants, recruiters could chat with them over the phone first, shortlist them and invite them to China for face-to-face interviews. Finally, the employers should offer them jobs and sign contracts. In this way, both jobseekers and recruiters could avoid blind expectations and make the process more efficient.

As far as I know, few Chinese organizations would fly jobseekers to China for interviews. The return of overseas professionals, in addition to compensation, also is constrained by such equally important factors as the education of children and the arrangement of family life. Therefore, if China really wants to take advantage of the downturn and the widespread job losses to poach back much needed talent, it has to be innovative and concrete in these aspects.

McDonald’s to open 175 outlets in China, hiring more than 10,000

BEIJING (Xinhua) — McDonald’s China announced on Wednesday an expansion plan to set up 175 new outlets and create more than 10,000 jobs this year on the Chinese Mainland despite global economic downturn.

The expansion was the largest of its kind ever made by McDonald’s across the world.

“The move will bring more opportunities for cooperation to food-related industries in China,” said McDonald’s China CEO Jeffrey Schwartz.

The US-based food chain store group has 50 suppliers in China, with more than 95 percent of its food materials coming from local market.

On the same day, the group announced its decision to launch a 16.5 yuan (about $2.4) discount meal in its Chinese outlets.

“The price is even lower than that of a similar product in this market a decade ago,” said Schwartz.

He added the company’s management of material supply and its increasing presence in China helped cost control and made the big discount possible.

McDonald’s has opened more than 1,050 outlets in China in the past two decades.

8 Must-Knows about Business Set-up in China

More and more Australian companies are setting up their own presence in China in order to source products/services directly from China or enter the Chinese market. However, given the alien nature of local regulations and business environment in China, it is critical to be proactive and fully prepared before you take the strategic move to set up your own presence in China.

Here are some “must-knows” before you set up the business in China:

1.You have more than one option for a local presence in China. Your China presence may be in the form of a wholly owned foreign enterprise, a contractual joint venture, an equity joint venture, a representative office or a local representation by a third party (local secretary/representation service companies).

2.Carefully define your business scope for the China presence. China National Development and Reform Commission may prohibit, restrict, permit or encourage your business set-up based on your business categorization and scope. Hence it is critical to carefully define your business scope so as to be permitted or encouraged to set up the presence.

3.Select the right location for your China operation. China abandoned its preferential tax rate for investments of foreign companies from January 1st 2008. However, some areas still offer local preferential policies for foreign investors in terms of land leasing/procurement, staff recruitment and management, local tax etc.

4.Confirm the minimum registered capital for your China operation. The Chinese government requires certain minimum registered capital for various types of businesses. However, local Industry and Commerce Administrations may decide on your minimum registered capital based on their judgement of your business scope and operation scale. You need to confirm with local government agencies the minimum registered capital through local contacts before taking any other actions in case they require an amount far above your financial resources available for the China operation.

5.Integrate commercial clauses in the Articles of Association to maximise profit repatriation into Australia. You may have commercial arrangements between your Head Office in Australia and the subsidiary in China in order to guarantee maximum profit repatriation. However, some arrangements must be included as part of the Articles of Association to be valid. The Articles of Association is to be submitted to local government agencies for approval and filing during business license registration. Hence, you must incorporate necessary clauses in the Articles of Association in the first instance.

6.Fully understand employers’ responsibilities and liabilities in China. China issued the new Law of Labour in 2007 which specified issues on employment contract, redundancy, etc. Without preliminary knowledge of this law, you may end up spending a huge amount of time and money terminating the contract with under performing employees, as the structure of the contract was wrong. You also need to be aware of the mandatory employee welfare and benefits so as to include such cost in the budget.

7.Conduct thorough due diligence and credit check on your joint venture partners. Your partners may not be what they claim to be. China has the business culture to show their wealth and status by driving luxurious cars, wearing prestigious watches and owning an impressive factory. Hence your Chinese business partners may look financially viable and well connected but, as a matter of fact, live on bank loans and personal debts.

8.Develop a comprehensive local employee management system. It is a hard job to recruit the right staff in a foreign country. It is even harder to effectively manage the local staff in a foreign country. A sound and robust employee management system will encourage the engagement and commitment of local staff and avoid potential risks. You may include reporting and communication policies, staff training, performance assessment, remuneration, career management and employee management manual in the system.

Business set-up in China is a big project by itself, which requires financial and time commitments, business management knowledge and China expertise. Identifying a competent agent to manage the complex process will be a cost and time effective way to avoid potential pitfalls.

Information above is provided by Sara Cheng, Manager for Greater China, Australian Business International Trade Services.

Ericsson Will Recruit Hundreds Of New Chinese Employees To Support 3G Construction

While some companies around the world are responding to the financial crisis with job cuts, the newly issued 3G licenses in China have caused Ericsson to plan a hiring spree of several hundred new employees in China in 2009.

Chinese media previously reported that Ericsson China would cut 150 staff in March 2009, accounting for 5% of its Chinese employees. This was said to be a part of Ericsson’s global layoff of 5,000 people. However, a representative from the human resources department of Ericsson China denies the rumor and says their pressure now is from recruitment, not layoffs. Ericsson’s technology department in China will hire several hundred new employees this year and its telecommunications service department also needs new blood.

In China Unicom’s 3G network construction tender, Ericsson is one of the major winners. China Mobile’s chairman Wang Jianzhou also said at the end of January 2009 that the company planned to include Ericsson in the list of its 3G network equipment suppliers.

In its latest financial report published in January 2009, Ericsson said it was seeking to further cut costs by such measures as cutting 5,000 employees, aiming to save SEK10 billion annually before the second half of 2010.

China Unicom launches recruitment drive for new subsidiaries

China Unicom is looking to hire managers for three subsidiaries focused on the development of innovative value-added services, according to a company announcement on Jan. 21.

Unicom NewSpace, China Unicom’s subsidiary responsible for value-added service development and operations, and its two newly-established subsidiaries respectively responsible for music services and video services, will hire nine managers with experience in music services, video services, Internet advertising, IM and SNS.

By recruiting experienced managers, the company hopes to further develop its broadband, mobile and Internet services, particularly in time for its 3G launch.

China Unicom said previously that it aims to have a profitable WCDMA business by 2010, and innovative 3G value-added services will be crucial.

According to a CCID Consulting report, successful 3G operators will need to develop pioneering applications as well as provide individual and customized services for users.

Roche Seeks Biotech Licensing, Takeovers in China

Roche Holding AG, Switzerland’s biggest drugmaker, may make its first acquisition of a Chinese biotechnology company or buy rights to a compound developed in the country later this year.

Two executives from Roche’s drug-partnering unit based in China are scouting for opportunities, including licensing experimental medicines, Lee Babiss, the head of Global Pharma Research at the Basel, Switzerland-based company, said in a Feb. 4 interview.

“They’re looking not only for those types of assets but also drug formulation because know-how is really very, very deep in China,” Babiss said. “We are also narrowing down a few opportunities that might involve mergers and acquisitions or simple in-licensing.”

Chief Executive Officer Severin Schwan said earlier this week that the drugmaker is “constantly” looking for acquisition targets in addition to the planned $42.1 billion purchase of partner Genentech Inc. Roche, which reported a drop in second-half net income on Feb. 4 and said earnings may not grow this year, went hostile in its bid for full control of Genentech a week ago after failing to secure a negotiated deal.

Bigger Slice

Pharmaceutical companies are seeking a bigger slice of sales in emerging markets such as China as revenue in mature markets in the U.S. and Europe sags. The deepening global recession is spurring industry consolidation as governments increasingly favor generics and cheaper medicines as a way to stem the rising cost of health care.

Roche spent about 100 million Swiss francs ($85.4 million) in research and development in China from 2004 to early 2008, focusing on cancer, arthritis and anemia. The Swiss drugmaker, which opened its first subsidiary in the country more than 80 years ago, operates four sites in Shanghai and Hong Kong with a total of 2,000 staff.

Roche’s hostile bid for South San Francisco, California- based Genentech is 2.8 percent lower than the price it initially offered in July. It follows a $68 billion offer by Pfizer Inc. for U.S. peer Wyeth last month.

Genentech, whose Avastin and Herceptin cancer drugs have made Roche the world’s biggest seller of anti-tumor medicines, has helped the Swiss drugmaker grow faster than its peers and left it less exposed to patent expirations than Basel neighbor Novartis AG or Pfizer, which is the world’s largest drugmaker.

Harvard Graduates

Roche is conducting about six research projects in China and is working with a local partner on an experimental cancer treatment. The collaboration isn’t a “traditional” licensing relationship, Babiss said, without providing details.

The Swiss drugmaker is also looking to hire “excellent” scientists in China and is transferring more chemistry-related research to partners there, Babiss said.

“Most of the people that we’ve hired that have come back were trained at Harvard and MIT and these are brilliant people,” Babiss said, referring to Harvard University and the Massachusetts Institute of Technology. “At the beginning it was chemists, now the biologists are coming over. More of them are going to come back to China and shape that environment.”

Germany’s Bayer AG, Sanofi-Aventis SA of France, and London-based AstraZeneca Plc are among European rivals also expanding their presence in China. Economic growth in China and India is creating pharmaceutical markets that are growing twice as fast as those of developed nations, PricewaterhouseCoopers LLC said in a report last year.

Science Spin-Offs

GlaxoSmithKline Plc, the world’s second-largest drugmaker, in 2007 earmarked $40 million for a research and development facility in Shanghai. Novartis, the same year, decided to open a $100-million research center in the same city.

Roche may also create spin-offs in the country by helping scientists to set up their own companies with compounds licensed from the Swiss drugmaker, he said. Roche hasn’t lost many scientists in China, though “eventually in that type of dynamic environment people will leave,” he said.

“The question is do we want to lose the talent or do we want to have some hook back to that talent and I’d rather do the latter,” Babiss said. “If someone’s going to leave, I’d say well alright you want to leave, you’re entrepreneurial – how can we help you leave?”

Babiss is considering hiring “a few people” with the understanding that in two or three years they would leave and form a startup.

“This is all about testing new ways of doing drug discovery,” Babiss said. “This won’t work in New York or the U.S. or here Basel, but it may work in China.”