Answer: Whether your remuneration is under the minimum wage protection first depends on the contractual provisions agreed by the parties. If the contract between the two parties stipulates a remuneration higher than the minimum wage, of course, the company must abide by the contractual provision. However, if there is no contractual agreement on remuneration between the two parties, or the contract stipulates a remuneration lower than the minimum wage, it depends on whether there is an employment relationship between you and the company.
If there is an employment relationship between you and the company, the company must pay you not less than the minimum hourly wage. However, if the relationship between you is a contractor relationship, even if you personally understand that the relationship between you is an employment relationship, your work remuneration is still not protected by the minimum wage. 1Civil Judgment of Second Instance of Labor Dispute Civil Cases by Zhang Mou-mou, Yu Mengchi, etc. Civil Judgment of Wuhan Intermediate People’s Court of Hubei Province (2022) E 01 Minzhong No.20197. Meng Qingmei, Shandong Tai’an No.1 Middle School Civil Judgment of Labor Dispute Civil Second Instance Shandong Tai’an Intermediate People’s Court Civil Judgment (2022) Lu 09 Min Zhong No.3116. In the case the court draw the line at the time point when employees reach retirement age and receive pension insurance benefits, before which it is employment relationships, protected by the minimum wage, and after which it is contractor relationships, not protected by the minimum wage. Labor Dispute between Longshan Health Center of Dianbai District and Li Meili Civil Judgment of Maoming Intermediate People’s Court of Guangdong Province (2015) Mao Zhong Fa Min Er Zhong Zi No.254. “Contractor relationships are not subject to the minimum wage standard requirements.”For how to judge whether the relationship between the two parties is an employment relationship or a contractor relationship, please refer to How do I distinguish between an employment relationship and a contractor relationship?
It should be noted that the minimum wages under the protection of employment law in China is hourly rate protection based on actual work hours, instead of protection of wage rate in pay circle. For example, Mr. Zhang, whose due wage is local minimum wage, in a particular month worked less than standard hours (i.e. 174 hours per month). His payable wages for the month will be less than the local minimum wage. Even if he worked full standard hours in the month, his received wages will still be under the local minimum wage standard due to the legitimate deductions such as social insurance contributions.
In addition, the minimum wage standard for casual employees is different from that for full-time employees. For example, the monthly minimum wage standard for full-time employees in Shenzhen in 2023 is RMB 2,360 /month (the hourly wage is RMB 13.6); the hourly minimum wage for casual employees is RMB 22.2.
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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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- 1Civil Judgment of Second Instance of Labor Dispute Civil Cases by Zhang Mou-mou, Yu Mengchi, etc. Civil Judgment of Wuhan Intermediate People’s Court of Hubei Province (2022) E 01 Minzhong No.20197. Meng Qingmei, Shandong Tai’an No.1 Middle School Civil Judgment of Labor Dispute Civil Second Instance Shandong Tai’an Intermediate People’s Court Civil Judgment (2022) Lu 09 Min Zhong No.3116. In the case the court draw the line at the time point when employees reach retirement age and receive pension insurance benefits, before which it is employment relationships, protected by the minimum wage, and after which it is contractor relationships, not protected by the minimum wage. Labor Dispute between Longshan Health Center of Dianbai District and Li Meili Civil Judgment of Maoming Intermediate People’s Court of Guangdong Province (2015) Mao Zhong Fa Min Er Zhong Zi No.254. “Contractor relationships are not subject to the minimum wage standard requirements.”