Labor Rights and Working Conditions
In 1998, China, along with all other members of the International Labor Organization (ILO), adopted the ILO's Declaration on Fundamental Principles and Rights at Work, which obligates members to heed the four core labor standards-freedom of association and the effective recognition of the right to collective bargaining, freedom from forced labor, the effective abolition of child labor, and nondiscrimination in employment. Moreover, China has
signed the International Covenant on Civil and Political Rights and ratified the International Covenant on Economic, Social and Cultural Rights. Both of these covenants contain provisions that protect the rights of workers, although China has taken reservations
on the latter's section dealing with the right to form free trade unions and the right to strike.(49)
As China has
shifted to a market-oriented economy, labor issues have become more
prominent. While some workers have benefited from the attendant economic
changes, little progress has been made in implementing core labor
standards. Efforts to improve compliance with China's own national laws
are ongoing, but weak.
Labor unrest has increased in recent years. In the spring of 2002, tens of thousands of workers engaged in protests in the northeastern Chinese cities of Liaoyang, Daqing, and Fushun over issues that included nonpayment of back wages and pensions, loss of benefits,
insufficient severance pay, corrupt company and government officials, and the inability of workers to obtain a meaningful hearing on their grievances.(50) Throughout China, the
"iron rice bowl" that once guaranteed workers lifetime employment and
benefits is fast disappearing as financially troubled state-owned
enterprises downsize, privatize, and shut down.
The unemployed rural workers, farmers, and young
women who are flooding into cities, primarily in southern and coastal
China in search of jobs in the rapidly growing private sector, exacerbate
the labor problem. They have few of the benefits of local residents, and
many find jobs in unsafe private factories where wage and hour, and health
and safety laws are seldom strictly enforced. Economic and social stresses
will grow and become more difficult to manage if Chinese workers are not
able to enjoy their internationally recognized labor rights.
Freedom of Association
The ILO's Declaration on Fundamental Principles and Rights at Work, as well as International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, provide workers the freedom to associate.(51) While the Chinese Constitution guarantees freedom of association,(52) Chinese law requires that all worker associations be approved by, and
subordinate to, the All-China Federation of Trade Unions (ACFTU).(53)
No free trade unions exist in China today. Although the ACFTU Constitution states that "the major social functions of the Chinese trade unions are to protect the legitimate interests and democratic rights of workers and staff members,"(54) the government has harassed, arrested, and imprisoned labor activists who attempt to form independent unions or organize strikes or worker protests.(55) Examples
include Hu Shigen and Liu Jingsheng, who are serving sentences of twenty and fifteen years, respectively, for attempting to organize the Free Labor Union of China.(56)
The ACFTU serves more as an instrument of the state and Party than as a body to promote interests of workers, traditionally acting as a vehicle for propaganda and as a benefits managing body. Wei Jianxing, the current head of the ACFTU, is a member of the
Standing Committee of the Politburo of the Central Committee of the Chinese Communist Party.(57) There are signs that some individuals within the ACFTU have tried to take a more proactive approach regarding worker rights.(58) However, both the Trade Union Law and the ACFTU Constitution continue to require trade unions to abide by the leadership of the Communist Party, promote economic reforms, and safeguard state power.(59)
The Right to Assembly and Strike
The Chinese Constitution, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights provide for freedom of speech and assembly.(60) Although Chinese law does not explicitly deny the right to strike, neither does the law protect that right. Authorities generally act against strikes and break up many worker protests, although the response of local security authorities varies widely.(61)
According to government figures, which likely understate the scope, there have been protests involving more than 10,000 workers in 31 cities in the last few years.(62) Most of these were illegal under Chinese laws governing public assembly. Human Rights Watch has detailed the elaborate means used by the government to crack down on worker demonstrations, including targeted arrests and detention and other harsh treatment of the leaders, along with minor concessions to the majority of demonstrators.(63) For example, four key
leaders of the Liaoyang city protest, Yao Fuxin, Pang Qingxiang, Xiao
Yunliang, and Wang Zhaoming, were detained in March 2002, charged with
"illegal assembly, marches, and protests," and now face possible five-year
prison terms.
Despite these measures, in order to manage unrest and prevent the formation of independent labor organizations, the government has tolerated some strikes and demonstrations and has even helped workers achieve their demands in a limited number of cases where workers have sought to address narrow economic grievances.(64)
Collective Bargaining
The ILO's Declaration on Fundamental Principles and Rights at Work guarantees the right of workers to bargain collectively. Official Chinese sources often refer to collective bargaining in reaching labor agreements and cite as evidence the approval of 270,000 collective contracts in 2001.(65) In some areas in China, local labor authorities develop a standard employment agreement and distribute it to all factories for use as a labor contract. Workers have had little meaningful input into this process.(66) Without independent labor unions and the
ability of workers to organize freely, collective bargaining cannot truly
be said to exist in China.
Working
Conditions
The International Covenant on Economic, Social and Cultural Rights recognizes the right of workers to safe and healthy working conditions. China has adopted measures to improve conditions at work, including the Labor Law, which requires employers to implement
standards for occupational health and safety and to educate workers on safety issues; the Law on the Prevention and Cure of Occupational Diseases; Regulations on Labor Protection in Workplaces Where Toxic Products Are Used; and the Law on Work Safety.(67)
Workplace health and safety continue to be serious problems in China. The State Administration for Work Safety, established in 2001, reported that, "from January to July 2002, 65,350 people lost their lives in a total of 549,939 workplace accidents."(68) Safety in mines has become a priority concern, with the Chinese government reporting that 12,000 miners were killed in accidents last year.(69)
Chinese law setting maximum hours for the work week and overtime complies with international standards. However, in practice, Chinese often work hours far in excess of these limits, and companies frequently require excessive overtime that is not paid properly.(70)
Migrant workers living in dormitories connected with
factories in southern China often face conditions of severe overcrowding,
lack of proper sanitation facilities, and inadequate fire and safety
protection. Many have been denied medical care, access to schools for
their children, and other social benefits.
As in many areas covered by this report, the wide discretion that local and provincial officials often have in interpreting and implementing national laws and regulations results in inconsistencies in application and opens the door to corruption. For example, China's Labor Law allows enterprises, with the approval of the local "labor
administrative department," to adopt their own rules for working hours(71) - an obvious invitation to abuse.
Labor Arbitration and Litigation
The Labor Law and the Regulations for the Handling of Labor Disputes create a three-tier system for handling labor disputes that includes mediation, arbitration, and litigation.(72) With the help of legal aid and information centers, some Chinese workers have begun to understand their legal rights. In 2001, workers filed 155,000 labor disputes, a 14 percent increase over 2000, although statistics on the issues underlying these disputes are not available.(73)
Nevertheless, general awareness of China's laws and regulations on the part of workers, management, and even some government officials remains low.(74) The Hong Kong Christian Industrial Committee, a group that organizes and provides assistance to workers in Hong Kong and China, found that among the workers they interviewed, "Less than half... said they knew about labor law. None of the workers knew about other regulations concerning labor rights. Workers had no idea how to use the laws to defend their rights."(75) Programs for enforcement generally do not exist, and enterprise managers often ignore the regulations even when they are aware of them.(76)
Worker advocates often find themselves in peril. Xu Jian, a labor lawyer in the northern China city of Baotou, who represented laidoff workers seeking redress from two large state-owned enterprises, published pamphlets for workers describing their rights under Chinese law. He was arrested and sentenced in 2000 to four years in prison for "incitement to overthrow state power."(77) Local authorities in Shenzhen reportedly have ordered Zhou Litai, a lawyer who successfully represented migrant workers injured in the workplace, to close his law practice in that city.(78)
Ultimately, judgments about the success of labor arbitration and litigation can rest only on whether workers receive fair and impartial adjudication of disputes, whether these remedies are made available to laid off workers (not currently entitled to this right under the law),(79) and to what extent
labor advocates are allowed to assist workers to pursue grievances and
assert their legal rights.
Child Labor
China ratified ILO Convention 182 on the Worst Forms of Child Labor in August 2002.(80 China's Law on the Protection of Minors and related regulations prohibit employment of children under the age of sixteen, except in very limited circumstances. Children between sixteen and eighteen cannot work in hazardous or physically strenuous jobs and are subject to restrictions that include a prohibition on working overtime or at night. These protections are ignored in many workplaces.(81) One well-publicized case in March 2001 involved an explosion at a fireworks factory in Jiangxi Province, where the factory was located inside a school and students manufactured the fireworks. Forty-two people died, mainly children.(82) Estimates for the number of child laborers in China vary widely.(82) In the past, the
Chinese government denied that child labor was a problem. However, in
October 2001, it established an interagency commission to study the issue.
The commission's activities have not been made public.
orced Labor
The ILO's Declaration on Fundamental Principles and
Rights at Work and the International Covenant on Civil and Political
Rights prohibit forced labor. Yet China's system of re-education through
labor (laojiao - administrative detention managed outside of the judicial
process) and reform through labor (laogai - a criminal punishment)
encompass several million individuals subject to forced labor. (See the
Criminal Justice section for details on re-education through
labor.)
Chinese regulations bar the export of goods made with prison labor, and China denies that prison-made goods are being shipped to the United States.(84) The United States and China signed a Memorandum of Understanding in 1992 to prevent import into the United States of products made using Chinese prison labor. A subsequent agreement in 1994 permitted U.S. officials, with Chinese government permission, to visit prison facilities suspected of producing goods for export to the United States.(85) U.S. officials have made thirteen requests for site visits. Since 1996, they have been permitted to conduct only three site visits in China and found no proof of prison exports to the United States.(86) In June 2002, Chinese officials agreed to
regular meetings to facilitate implementation of the agreements. China
then agreed in September 2002 to allow one previously requested visit to
take place.
The United States-China Relations Act of 2000 created a Prison Labor Task Force to monitor and promote effective enforcement of U.S. law in this area.(87) Its first annual report to Congress stated, "We believe that prison officials frequently provide prison labor to private, quasi-government, or government-owned manufacturing facilities to perform manufacturing and assembly work, and that the remuneration prisons receive for prisoners' services give prison officials no incentive to cooperate in preventing the export to the United States of goods made with prison labor."(88) Overall, Chinese
cooperation in implementing these understandings has been minimal.
(Illustrative legal provisions include: PRC
Constitution, Articles 17, 35, 42, 43, 44; PRC Law on Work Safety - 2002;
PRC Law on the Prevention and Cure of Occupational Diseases - 2001; PRC
Law on Trade Unions - 1992, amended 2001; PRC Labor Law - 1994;
Regulations on Labor Protection in Workplaces Where Toxic Articles Are
Used - 2002; Regulations on Enterprise Minimum Wage - 1994; PRC
Regulations Governing the Settlement of Labor Disputes in Enterprises -
1993; Constitution of the Trade Unions of the People's Republic of China -
1998)
Footnotes
49: International Labour Organization Declaration on Fundamental Principles and Rights at Work, adopted 19 June 1998 [hereinafter "ILO Declaration"], art. 2; International Covenant on Civil and Political Rights, entered into force 23 March 1976 [hereinafter "ICCPR"]; International Covenant on Economic, Social and Cultural Rights, entered into force 3 January 1976 [hereinafter "ICESCR"]. China ratified the ICESCR on March 27, 2001 with reservations (see Appendix 2).
50: See, e.g., Human Rights Watch Report, Paying the Price: Worker Unrest in Northeast China, p. 2.
51: ILO Declaration on Fundamental Principles and Rights at Work, adopted 19 June 1998, art. 2; Universal Declaration of Human Rights, adopted 10 December 1948, art. 20 [hereinafter Universal Declaration]; ICESCR, arts. 21, 49.
52: Chinese Constitution, art. 35.
53: Trade Union Law of the People's Republic of China [Zhonghua renmin gongheguo gonghuifa], adopted 3 April 1992, amended 27 October 2001, arts. 4, 9, 11.
54: Constitution of the All China Federation of Trade Unions [Zhonghua quanguo zong gonghui zhangcheng], General Principles, para. 4.
55: Human Rights in the Context of Rule of Law: Commission Hearing, Written Statement Submitted by Mike Jendrzejczyk, Washington Director, Human Rights Watch Asia.
56: Jiang Xueqin, "Fighting to Organize," Far Eastern Economic Review, 6 September 2001, 72.
57: People's Daily, "Wei Jianxing," 24 September 2002 (20 August 2002).
58: Anita Chan, "China and the International Labour Movement," China Review (Summer 2001); Commission Staff Meeting with John Chamberlin, First Secretary, Labor Affairs, Economic Section, Embassy of the United States in Beijing, 23 July 2002.
59: Constitution of the All China Federation of Trade Unions, General Principles, para. 6.
60: Chinese Constitution, art. 35; ICCPR, arts. 19, 21; ICESCR, art. 8(d).
61: "Deprived Groups May Be the Greatest Threat to Society," South China Morning Post, 6 February 2002.
62: "Labour Unrest Spreads to 16 Provinces and Municipalities," Hong Kong Cheng Min, 1 April 2002, translated in FBIS, Doc ID CPP20020404000066.
63: Human Rights Watch, Paying the Price: Worker Unrest in Northeast China, August 2002, 15-38.
64: Thomas Lum, Congressional Research Service, China: Labor Conditions and Unrest, Report for Congress, 15 October 2001, 13.
65: PRC Ministry of Labor and Social Security, "2001 Annual Statistical Report on the Development of Labor and Social Security Work," 3, (20 August 2002).
66: Guangdong Province Labor and Social Security Office, Guangdong Province Workers' Labor Contract (Non-Local Personnel: Temporary Employment) (on file with the Commission).
67: Labor Law of the People's Republic of China [Zhonghua renmin gongheguo laodongfa], adopted 5 July 1994 [hereinafter "PRC Labor Law"], arts. 52, 53-55, 56; Law of the People's Republic of China on the Prevention and Cure of Occupational Diseases, adopted 27 October 2001; PRC Regulations on Labor Protection in Workplaces where Toxic Products Are Used, issued 12 May 2002; and the Work Safety Law of the People's Republic of China, adopted 29 June 2002. China has also promulgated regulations on administrative penalties for violations of the Labor Law and ascertaining responsibility for serious industrial accidents. See Administrative Penalty Measures for Violating the Labor Law [Weifan zhonghua renmin gongheguo laodongfa xingzheng chufa banfa], adopted 26 December 1994; Regulations on Ascertaining Administrative Responsibility for Extremely Serious Accidents Due to Negligence of Production Safety [Guowuyuan guanyu teda anquan shigu xingzheng zeren zhuiqiu de guiding], issued 21 April 2001.
68: "Workplace Safety Poses Major National Challenge," China Daily, 8 August 2002.
69: State Department Human Rights Report, China, 37.
70: See, e.g., Philip Pan, "Worked Till They Drop Few Protections for China's New Laborers," The Washington Post, 13 May 2002, Section A1.
71: PRC Labor Law, art. 39.
72: PRC Labor Law, arts. 77-83; PRC Regulations on Settlement of Labor Disputes [Zhonghua renmin gongheguo qiye laodong zhengyi chuli tiaoli], issued 11 June 1993.
73: PRC Ministry of Labor and Social Security, "2001 Annual Statistical Report on the Development of Labor and Social Security Work," 3.
74: Gerard Greenfield and Tim Pringle, "The Challenge of Wage Arrears in China," ILO Labor Education (2002).
75: Hong Kong Christian Industrial Committee, Report on the Labor Rights and Occupational Safety and Health Conditions of Toy Workers in Foreign Investment Enterprises in Southern Mainland China, 67.
76: Verite, Country Labor and ILO Compliance Assessment Series: People's Republic of China, draft report to be published in October 2002, 13 (on file with the Commission) [hereinafter Verite, Country Labor and ILO Compliance Assessment Series].
77: China Labor Bulletin, "Release Xu Jian - Background Information and Addresses," (20 September 2002).
78: See, e.g., Craig S. Smith, "China Tells Lawyer Who Aids Injured Workers to Close His Office, The New York Times, 3 January 2002.
79: Philip P. Pan, "Chinese Workers' Rights Stop at Courtroom Door," Washington Post, 28 June 2002, A1.
80: International Labor Organization, "Ratification Map of Convention No. 182," (20 August 2002).
81: Verite, Country Labor and ILO Compliance Assessment Series, 7.
82: ABC News, "A Classroom Into a Grave," 8 March 2001, (15 September 2002).
83: Calum and Lijia MacLeod, "Never Seen, Never Heard," South China Morning Post, 12 July 2000, 2, 3.
84: Task Force on the Prohibition of Importation of Products of Forced or Prison Labor from the People's Republic of China, 2002 Annual Report, August 2002 [hereinafter, "Prison Labor Task Force, Annual Report"].
85: See 1992 Memorandum of Understanding on Prohibiting Trade in Prison Labor Products with China dated 7 August 1992; the Statement of Cooperation on the Memorandum of Understanding on Prohibiting Trade in Prison Labor Products with China, dated 14 March 1994.
86: Ibid.
87: 2000 China Relations Act, sec. 501 et seq.
88: Prison Labor Task Force, Annual
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