New Formalities for Casual Labor: Addressing Unintended Consequences of China\u27s Labor Contract Law

China’s Labor Contract Law (“LCL”) came into force on January 1, 2008. The first major piece of labor legislation since the 1994 Labor Law, the Labor Contract Law expanded legal protection for workers by mandating that labor contracts be in writing and delivered to all workers. Employers, predicting that the law would effectively raise the cost of employing full-time, long-term workers, sought methods of “creative compliance” with the law. One avenue for creative compliance emerged through the loophole in the LCL for so-called “dispatch workers.” Dispatch workers are formally employed by third-party dispatch service agencies and thus not covered by employment contracts with the firms where they perform their job (“accepting entities”). In the first five years following the LCL’s enactment, dispatch workers grew from a negligible share of China’s labor force into a pervasive phenomenon. The dispatch worker exception began to swallow the rule, eroding the intended labor protections of the LCL. In response, the Standing Committee of the National People’s Congress amended the LCL, effective July 1, 2013. These amendments drastically reduced the permissible scale and purpose of dispatch labor and augured tighter regulation for the dispatch industry. Following a period of public comment, the Ministry of Human Resources and Social Services provided specific departmental rules regarding the licensing of dispatch agencies and standard industry-wide practices, effective March 1, 2014. The new regulations restricted enterprises from hiring more than ten percent of their workers as dispatch workers and clarified the obligations of dispatching agencies as employers. With reports of abuse of dispatch workers continuing to surface, the effects of the amendments and the provisions on labor remain unclear. This comment addresses China’s effort to intervene in employment arrangements via legislation. It first surveys the background of labor legislation in China from the Mao era, through reform, and into the twenty-first century. It then examines the interaction of the labor market and labor legislation, as employers respond to changes in China’s labor regime through the introduction of Amendments to the LCL. Finally, this comment suggests that reform in labor legislation based on individual contract should be secondary to expanding collective labor rights

Foreword

When the Pacific Rim Law & Policy Journal was founded in 1990, it focused scholarly attention on a region of the world at the dawn of a new era. The year prior, nations of the Pacific Rim came together to establish Asia-Pacific Economic Cooperation (APEC). At the same time, legal scholars in the United States sought to deepen their understanding of the region. However, despite the obvious and growing importance of Asia to global legal study, there was but one comparable law review focused on the Pacific Rim. Acknowledging the relative scarcity of scholarly fora, this Journal was inaugurated with a devotion “to bridge the gap between East and West.” It was fitting such a forward-looking and internationally-minded journal would come out of the University of Washington School of Law. As then-Editor-in-Chief, Lawrence Weiner, remarked in the foreword to the Journal’s intramural issue, “the University of Washington is located in a major Pacific Rim center whose lifeblood is tied to events in East Asia.” His remark echoes as true today as it did then. The school’s Asian Law Center, its LL.M. and Ph.D. programs, and its vision to train “Leaders for the Global Common Good” continues to attract students and scholars alike to the University of Washington campus to discuss the connection between the U.S. and the Pacific world

Note from the Editor-in-Chief

Washington International Law Journal’s editorial staff proudly presents the second issue since adopting a new name, expanding the Journal’s geographic scope, and revising its mission. While capitalizing on the Journal’s close ties to the Pacific Rim region, the Journal now also publishes global perspectives on international legal issues. The articles and comment included herein reflect the best of the Journal’s unique strengths and broadened scope

New Formalities for Casual Labor: Addressing Unintended Consequences of China\u27s Labor Contract Law

China’s Labor Contract Law (“LCL”) came into force on January 1, 2008. The first major piece of labor legislation since the 1994 Labor Law, the Labor Contract Law expanded legal protection for workers by mandating that labor contracts be in writing and delivered to all workers. Employers, predicting that the law would effectively raise the cost of employing full-time, long-term workers, sought methods of “creative compliance” with the law. One avenue for creative compliance emerged through the loophole in the LCL for so-called “dispatch workers.” Dispatch workers are formally employed by third-party dispatch service agencies and thus not covered by employment contracts with the firms where they perform their job (“accepting entities”). In the first five years following the LCL’s enactment, dispatch workers grew from a negligible share of China’s labor force into a pervasive phenomenon. The dispatch worker exception began to swallow the rule, eroding the intended labor protections of the LCL. In response, the Standing Committee of the National People’s Congress amended the LCL, effective July 1, 2013. These amendments drastically reduced the permissible scale and purpose of dispatch labor and augured tighter regulation for the dispatch industry. Following a period of public comment, the Ministry of Human Resources and Social Services provided specific departmental rules regarding the licensing of dispatch agencies and standard industry-wide practices, effective March 1, 2014. The new regulations restricted enterprises from hiring more than ten percent of their workers as dispatch workers and clarified the obligations of dispatching agencies as employers. With reports of abuse of dispatch workers continuing to surface, the effects of the amendments and the provisions on labor remain unclear. This comment addresses China’s effort to intervene in employment arrangements via legislation. It first surveys the background of labor legislation in China from the Mao era, through reform, and into the twenty-first century. It then examines the interaction of the labor market and labor legislation, as employers respond to changes in China’s labor regime through the introduction of Amendments to the LCL. Finally, this comment suggests that reform in labor legislation based on individual contract should be secondary to expanding collective labor rights

Foreword

When the Pacific Rim Law & Policy Journal was founded in 1990, it focused scholarly attention on a region of the world at the dawn of a new era. The year prior, nations of the Pacific Rim came together to establish Asia-Pacific Economic Cooperation (APEC). At the same time, legal scholars in the United States sought to deepen their understanding of the region. However, despite the obvious and growing importance of Asia to global legal study, there was but one comparable law review focused on the Pacific Rim. Acknowledging the relative scarcity of scholarly fora, this Journal was inaugurated with a devotion “to bridge the gap between East and West.” It was fitting such a forward-looking and internationally-minded journal would come out of the University of Washington School of Law. As then-Editor-in-Chief, Lawrence Weiner, remarked in the foreword to the Journal’s intramural issue, “the University of Washington is located in a major Pacific Rim center whose lifeblood is tied to events in East Asia.” His remark echoes as true today as it did then. The school’s Asian Law Center, its LL.M. and Ph.D. programs, and its vision to train “Leaders for the Global Common Good” continues to attract students and scholars alike to the University of Washington campus to discuss the connection between the U.S. and the Pacific world

The ASOS Surgical Risk Calculator: development and validation of a tool for identifying African surgical patients at risk of severe postoperative complications

Background: The African Surgical Outcomes Study (ASOS) showed that surgical patients in Africa have a mortality twice the global average. Existing risk assessment tools are not valid for use in this population because the pattern of risk for poor outcomes differs from high-income countries. The objective of this study was to derive and validate a simple, preoperative risk stratification tool to identify African surgical patients at risk for in-hospital postoperative mortality and severe complications. Methods: ASOS was a 7-day prospective cohort study of adult patients undergoing surgery in Africa. The ASOS Surgical Risk Calculator was constructed with a multivariable logistic regression model for the outcome of in-hospital mortality and severe postoperative complications. The following preoperative risk factors were entered into the model; age, sex, smoking status, ASA physical status, preoperative chronic comorbid conditions, indication for surgery, urgency, severity, and type of surgery. Results: The model was derived from 8799 patients from 168 African hospitals. The composite outcome of severe postoperative complications and death occurred in 423/8799 (4.8%) patients. The ASOS Surgical Risk Calculator includes the following risk factors: age, ASA physical status, indication for surgery, urgency, severity, and type of surgery. The model showed good discrimination with an area under the receiver operating characteristic curve of 0.805 and good calibration with c-statistic corrected for optimism of 0.784. Conclusions: This simple preoperative risk calculator could be used to identify high-risk surgical patients in African hospitals and facilitate increased postoperative surveillance. © 2018 British Journal of Anaesthesia. Published by Elsevier Ltd. All rights reserved.Medical Research Council of South Africa gran