Answer: Casual employment is a more flexible way of employment relative to full-time, the two parties need not sign a contract (of course, signing a contract does not breach the law), and this employment relationship can be terminated at any time.
According to the Employment Contract Law and judicial decisions, whether an employment relationship is a casual employment depends on the following factors: weekly work hours, bilateral agreement, payment method, and pay period.1Articles 68 and 72 of the Employment Contract Law (the weekly work hours shall not exceed 24 hours and the pay period shall not exceed 15 days), Civil Judgment of Second Instance of Employment Dispute between Beijing Boken Energy Conservation Technology Co., Ltd. and Li Yansheng, Civil Judgment before Beijing Third Intermediate People’s Court (2022) Jing 03 Min Zhong No.3895. ¡°To distinguish employment relations from casual employment relations, the main factors to be considered include the time for workers to provide labor, the period for employers to pay remunerations, the basis for calculating labor remunerations and the provisions of employment contracts.¡±
Work hours are the most important consideration. Although the Employment Contract Law also provides for a maximum 4 hours as daily work hours standard, the distinguishing indicator in the judicial practice is whether the total weekly work hours exceed 24 hours. Most judicial decisions regard this total weekly work hours as the first important judgment factor. If the worker’s weekly work hours occasionally exceed 24 hours, will it lead to the recognition of full-time employment relations? From the case of Cao Yazhen in Zhenhai District Court before Ningbo City in 2013, the court did take the number of work hours as an absolute, stringent indicator, but tended to combine other factors to determine the employment relations between the two parties.2Ningbo Zhenhai Baoxin High Strength Nut Factory v. Cao Yazhen Employment Dispute Ningbo Zhenhai District People’s Court Civil Judgment (2013) YZMCZ No.428. The court held that ¡°The definition of casual employment in our country is to adopt the standard of daily work hours combined with weekly work hours, that is, in general, no more than 4 hours a day and no more than 24 hours a week, but there is no absolute stipulation that the daily work hours exceed 4 hours and the weekly work hours exceed 24 hours should render a full-time employment relationship. The Court held that the judgment of casual employment and full-time employment relations should be based on the employer’s purpose of employment, the workload and work hours of workers.¡±
The agreement and cognition of both sides are also important factors. Employment law in China does not prohibit the employer from signing a written contract with casual workers. If the written contract stipulates the work hours being casual, it can be regarded as the preliminary proof of the formation of casual relationship between the two parties. The cognition of both parties to the relationship, including the expression of intention or the understanding of the closeness of the relationship between the two parties, is also an important factor. Of course, even if both parties agree or recognize it being casual, but the substantive characteristics of the relationship point to full-time nature, the relationship between the two parties is still a full-time employment relationship.3Civil Judgment of Second Instance of Employment Dispute between Xiamen Haokang Housekeeping Service Co., Ltd. and Yu Juan Civil Judgment of Nanjing Intermediate People’s Court of Jiangsu Province (2020) Su 01 Min Zhong No.1863. The Court holds that ¡°although Yu Juan has signed a casual employment contract with Haokang Home Economics Company, Yu Juan has submitted evidence to prove that her average weekly work hours from August 5, 2018 to August 4, 2019 far exceed the statutory casual work hours of 24 hours a week, which does not conform to the characteristics of casual employment relations. Even if both parties agree on casual employment relations when signing the contract, they have changed to full-time employment relations in actual implementation.¡±
Pay period and hourly rate are also important considerations, but they are not decisive. In 2014, the Intermediate People’s Court of Shaoyang City, Hunan Province, pointed out in a case that although the monthly payment of wages did not conform to the provisions of casual wage payment period being not exceeding 15 days, the court mainly determined whether it was casual work hours based on the number of work hours. In the case of Xu Shu before Kunshi City Court of Jiangsu Province in 2014, the court held that even though the employee’s remuneration period was not hourly but monthly, the casual employment relationship should still be recognized according to the employee’s work hours.4Wang Yanlian and Shaoyang College Employment Dispute Appeal Case Hunan Shaoyang Intermediate People’s Court Civil Judgment (2014) Shao Zhong Min Yi Zhong Zi No.46. Judging from Wang Yanlian’s work hours. ¡°Although Shaoyang University pays labor remuneration to Wang Yanlian on a monthly basis, which is inconsistent with the provisions of Article 72, paragraph 2, of the Employment Contract Law of the People’s Republic of China that “the longest wage pay period for casual employment shall not exceed 15 days”, it does not affect the determination of the nature of casual employment in this case.¡± Xu Shuzhi v. Kunshan Haysville Fitness and Beauty Co., Ltd. Civil Judgment of Kunshan People’s Court of Jiangsu Province (2014) Kunhua Min Chu Zi No.00614. ¡°According to the Plaintiff, the wage is not calculated on an hourly basis, and the wage is paid on a monthly basis. The Court holds that the key to the legal definition of whether the form of employment between the employer and the worker is casual employment lies in the work hours.¡±
Therefore, whether the employment relationship between your employer and you is casual or full-time should be judged comprehensively by considering the aforementioned factors. If casual can not be established, the corresponding legal consequence is that the relationship between the two parties is full-time employment.
This article is a part of our new book“Employment Law in China: A Practical Guide. A book about “What should I do” with case laws.”Stay tuned, and the book will soon be published as an electronic books!
Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
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- 1Articles 68 and 72 of the Employment Contract Law (the weekly work hours shall not exceed 24 hours and the pay period shall not exceed 15 days), Civil Judgment of Second Instance of Employment Dispute between Beijing Boken Energy Conservation Technology Co., Ltd. and Li Yansheng, Civil Judgment before Beijing Third Intermediate People’s Court (2022) Jing 03 Min Zhong No.3895. ¡°To distinguish employment relations from casual employment relations, the main factors to be considered include the time for workers to provide labor, the period for employers to pay remunerations, the basis for calculating labor remunerations and the provisions of employment contracts.¡±
- 2Ningbo Zhenhai Baoxin High Strength Nut Factory v. Cao Yazhen Employment Dispute Ningbo Zhenhai District People’s Court Civil Judgment (2013) YZMCZ No.428. The court held that ¡°The definition of casual employment in our country is to adopt the standard of daily work hours combined with weekly work hours, that is, in general, no more than 4 hours a day and no more than 24 hours a week, but there is no absolute stipulation that the daily work hours exceed 4 hours and the weekly work hours exceed 24 hours should render a full-time employment relationship. The Court held that the judgment of casual employment and full-time employment relations should be based on the employer’s purpose of employment, the workload and work hours of workers.¡±
- 3Civil Judgment of Second Instance of Employment Dispute between Xiamen Haokang Housekeeping Service Co., Ltd. and Yu Juan Civil Judgment of Nanjing Intermediate People’s Court of Jiangsu Province (2020) Su 01 Min Zhong No.1863. The Court holds that ¡°although Yu Juan has signed a casual employment contract with Haokang Home Economics Company, Yu Juan has submitted evidence to prove that her average weekly work hours from August 5, 2018 to August 4, 2019 far exceed the statutory casual work hours of 24 hours a week, which does not conform to the characteristics of casual employment relations. Even if both parties agree on casual employment relations when signing the contract, they have changed to full-time employment relations in actual implementation.¡±
- 4Wang Yanlian and Shaoyang College Employment Dispute Appeal Case Hunan Shaoyang Intermediate People’s Court Civil Judgment (2014) Shao Zhong Min Yi Zhong Zi No.46. Judging from Wang Yanlian’s work hours. ¡°Although Shaoyang University pays labor remuneration to Wang Yanlian on a monthly basis, which is inconsistent with the provisions of Article 72, paragraph 2, of the Employment Contract Law of the People’s Republic of China that “the longest wage pay period for casual employment shall not exceed 15 days”, it does not affect the determination of the nature of casual employment in this case.¡± Xu Shuzhi v. Kunshan Haysville Fitness and Beauty Co., Ltd. Civil Judgment of Kunshan People’s Court of Jiangsu Province (2014) Kunhua Min Chu Zi No.00614. ¡°According to the Plaintiff, the wage is not calculated on an hourly basis, and the wage is paid on a monthly basis. The Court holds that the key to the legal definition of whether the form of employment between the employer and the worker is casual employment lies in the work hours.¡±