Appointment of Employee to Overseas Post (Chinese and English) (C116)

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This employment contract is in the form of a letter from the employer to the employee, setting out the terms of the employment and expatriate benefits for an executive.  Suitable as a basis both for a new recruit and an existing employee who is to be posted overseas. There are two versions – English and Chinese.

There are 16 paragraphs setting out the terms of the appointment.  In addition to the usual provisions there are terms dealing with travel arrangements, accommodation, children’s education and medical treatment etc.

C116 –向海外派驻员工的任命 (中英双语)

这是一封以信函形式由雇主写给雇员的协议,本协议适用于将派驻国外新来的员工和已在职的员工。除了通常的规定以外,还涉及到雇用高级员工并派驻国外的津贴,交通、住宿、孩子教育以及医疗等方面。

This employment contract, prepared in the form of a letter, is designed for use where a company engages someone to work for it in an overseas office.   In such circumstances, the labour law in the country where the employee will be based needs to be considered, as well as the tax implications for the employee.   These are not matters which are covered by our document and specialist advice will be required.

A contract on the terms set down in the letter is made when it has been signed by the employer and countersigned by the employee without any qualification.

Dealing with the numbered paragraphs:

1. JOB TITLE AND DUTIES

This sets out the job title, the person to whom the employee will report and normal working hours.   The letter nonetheless makes it clear that work outside those hours may be required.

2. COMMENCEMENT AND TERM

This sets out the initial contract period and start date and well as providing for a notice period.

If a probationary period is required, an additional paragraph should be inserted here on the following lines:

“You will, for the first [3] months of your engagement, be on probation and during that period we will be entitled to terminate your appointment at any time by giving you notice to that effect.  In that case, we will provide you (and your dependents) with an air ticket to your home territory.”

Note that where the employee conducted himself in a manner that entitles the employer to dismiss him, a further provision may be added that no return fare will be provided, although in certain countries there may be an obligation on the employer to secure the removal of the employee from the country; specialist advice should be taken on such matters.

3. SALARY

As drafted, this contemplates that salary might be paid wholly or partly in local currency and the exchange rate is fixed on an annual basis.  Clearly, the precise wording will depend upon the particular circumstances.

We have not dealt with income tax in this Agreement.   This can be a fairly complex subject, especially if the Territory where the employee is based imposes income tax at a higher level than the home territory.  Both employer and employee need to deal with these issues and appropriate wording needs to be incorporated in the letter of appointment.

4. TRAVEL ARRANGEMENTS

These vary from company to company and from job to job.  Here we assume an air ticket will be provided for the Employee and his/her family accompanying him/her plus an excess baggage allowance.

5. ACCOMMODATION

Here again, the situation varies from Employer to Employer and from country to country.  Usually, if an Employee is posted to a developing country he/she is provided with furnished accommodation or an accommodation allowance.   From the Employee’s point of view, it is important to do some research – to see that accommodation is of an adequate standard or, if an allowance is given, that it is adequate to secure suitable housing.

6.  CAR

The provision of a car by an employer is a fairly standard perk in most countries nowadays.

7. ANNUAL LEAVE

The letter assumes the employee will be given one return ticket for himself and his family each year to his home country.  Sometimes there is a restriction on the amount of leave which can be taken at any one time and a distinction is made between home leave and local leave.

8. CHILDREN’S EDUCATION

Especially where the employee is a senior manager, a contribution towards children’s education is a feature of an expatriate employment package.

9. MEDICAL

A company with an establishment overseas is likely to have an effective medical insurance scheme covering its employees.

This paragraph also deals with the need for a medical examination of the Employee as well as vaccinations etc.

10. SICKNESS

As with a domestic contract, a sickness clause requiring medical certificates and dealing with the period in which salary will continue to be payable is covered here.

11. PENSION

This may or may not be applicable.

12. CONFIDENTIALITY

The letter contains a fairly standard provision which requires the employee to keep information confidential and to hand over all papers on termination.

13. TERMINATION

This provision is more widely drafted than would generally be found in a domestic appointment – in an expatriate post, the off-duty behaviour of an employee is more likely to cause embarrassment and to justify termination than at home.

14. RESTRICTIONS AFTER TERMINATION

This clause is designed to protect the employer from an employee going to work for a competitor or even setting up on his/her own in the territory.  Legal advice on the extent to which a restriction is enforceable is recommended.

15. NOTICES

A standard clause dealing with the way in which a notice under the letter can be given.

16. LAW

This letter assumes that English law will govern the contract when the employer is an English company. If the employer is a Chinese company, then Chinese aw should be inserted.  The potential impact of local law – i.e. the law of the country where the employee is based – should be checked by the employer and the employee.  In this connection, it is not unusual for local law to contain, for example, a gratuity entitlement if the employment contract is terminated after an employee has served a particular period.   Although that may not be reflected in an English law contract, an employee may be entitled to claim a gratuity under the local law. We suggest that specialist advice be obtained on the impact of the laws of the territory where the employee will be working.

For general guidance on preparing and signing contracts please see our notes at https://www.contractstore.comsigning_contracts
注    释

这份雇佣合同是以信函的形式准备,用于公司雇佣员工到海外工作。在这样的情况下,员工去工作的国家劳动法必须考虑进去,还必须考虑员工交税问题。这些问题都没有在我们的文件中涉及到,所以需要听取专家的建议。

当随函的合同由公司签署后,受雇员工也毫无保留地签署该文件时,合同即告成立。

1. 工作头衔与职责

该条款详述了工作头衔,员工向之报到的人和正常的工作时间,然而信函也明确了员工有时需要在这些时间之外工作。

2. 开始生效与任期

该条款详述了首期合同期,合同开始生效日期和规定了通知期限。

如果需要见习期,下列的几句应该插入该条款:

“在你雇佣期头(3个)月,为见习期。在见习期间,我们有权在任何时间通过通知终止你的任命。一旦发生此种情况,我们会提供给你和你的家人回国机票。”

请注意:只要员工的所作所为召致雇主解雇他,那么还必须加上一条——不提供飞机票,尽管在某些国家这是雇主的职责去确保员工的搬迁。在这个问题还必须听取专家建议。

3. 薪水

该条款认为薪水可以全部或部分按当地货币支付。兑换率以年度为基准。很明显,精确的用词取决于某些个别情况。

本协议没有涉及个人所得税。这可能是一个相当复杂的问题,特别是员工工作的销售区域征收的税要比本国的高。雇主与员式双方都需要考虑这些问题。这样这封任命信中需要用上合适的措辞。

4. 旅行安排

这个根据各个公司和各种工作来安排的。这里我们认为应该向员工以及他的家人提供机票和超重行李的补贴。

5. 住宿

各个公司与各个国家情况不同。一般来说,如果员工派往一个发展中国家,必

须向他/她提供带家俱的住宿或住宿津贴。从员工的角度来看,事先了解安排条件非常重要——了解住宿条件是否标准或者津贴是否发放或保证合适的住房等。

6.  汽车

公司提供一辆汽车是当今大多数国家一件相当标准的配给。

7. 年假

信函中规定每年一次向员工及其家属提供回国来往机票。有时对在任何一个时候假期的长短有限制。区别是回国度假和在当地度假。

8. 孩子的教育

特别当员工是个高级经理时,公司对孩子教育费用的补助是海外派遣一揽子计划中的一个方面。

9.  医疗

海外有驻扎机构的公司应该有涉及自己员工的医疗保险计划。

该段也涉及到员工体检和接种等需要。

10. 生病

与国内合同一样,有关生病的条款涉及到需要医疗证明和生病期间工资支付的问题。

11. 退休金

这条款也许适用的。

12. 保密

该信函含有相当标准的规定,要求员工对信息保密和在终止协议时上交所有文件。

13. 终止协议

该规定比起国内任命员工的规定更加详细,在海外职位比起在国内职位,员工的不称职更加可能引起麻烦,这样更可能终止协议。

14. 终止合同后的限制

该规定旨在保护雇主限制员工离任后为竞争对手工作或在工作区成立自己的业

务。推荐就此问题—设定此限制性条款是否合法可行—听取当地法律专家的意见。

15. 通知

这是一条标准条款,涉及到信函中有关通知发送的方法。

16. 法律

该信函确定英国法律是适用法。公司与员工应该了解当地法律潜在的影响力。
在这一点上,并不少见此种情况,例如说,当地法律规定在员工工作了一段时间后雇用合同终止了,公司应支付离退金。虽然这点没有在英国法律合同中反映出,但员工可以按照当地法律索取离退金。我们建议,就有关员工将要工作的销售区域里的法律影响力,咨询专家的意见。

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