Overview

The Commission's 2002 Annual Report found working conditions and respect for basic, internationally recognized worker rights in China to be well below international norms in numerous respects. It also found that working conditions and respect for worker rights in China were frequently in violation of China's own laws, especially those governing wages and overtime pay, work hours and overtime hours, and workplace health and safety. Over the last year, these conditions have remained largely unchanged.

The Chinese government continues to deny its citizens the right to freely organize and to bargain collectively and continues to imprison labor leaders and actively suppress efforts of workers to represent their own interests. Worker unrest continued in 2003, often in association with the closing of state-owned enterprises. Although no reports reached Western news media about massive worker demonstrations of the scale that occurred in northeast China in 2002, numerous reports in 2003 described smaller-scale protests by workers whose rights were ignored by management at collapsing state-owned companies. The government suppressed these protests with the same techniques used in northeast China in 2002. In addition, the Chinese government continues state-sanctioned discrimination against migrant workers and practices forced and prison labor. Child labor continues to be a significant problem in China.

International Labor Organization

Through the International Labor Organization (ILO), of which China is a member, most nations of the world have acknowledged the existence of a basic floor of international standards for the rights of workers - the rights to associate and to bargain collectively, elimination of forced labor, effective abolition of child labor, and nondiscrimination. The ILO's Declaration on Fundamental Principles and Rights at Work re-affirms the commitment of ILO Members to those basic rights.

Guidance on the full scope of the rights and principles enumerated in the Declaration is provided by the ILO's eight core conventions.(109) Many countries, including the United States, have not ratified all of the ILO's core conventions, but the Declaration states, "even if they have not ratified the [ILO] Conventions . . . [ILO Members] have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions."

With the exception of the ILO provisions relating to freedom of association and collective bargaining, Chinese labor law generally incorporates the basic obligations from the ILO's eight core conventions. The Chinese government's failure to enforce existing laws, however, makes this incorporation largely irrelevant when considering actual working conditions in China.

Freedom of Association and Collective Bargaining

The Chinese government denies its citizens the freedom to associate and forbids them from forming independent trade unions. The government has made no progress in the past year toward respecting this right, and continues to use the All-China Federation of Trade Unions (ACFTU) as a tool of Communist Party control of union activity. China continues the practice of imprisoning labor leaders as a means of repressing independent labor activity.

The inability of Chinese workers to organize independent labor unions prevents them from defending their own interests. For working conditions in China to improve significantly, workers require greater freedom of association in law and in practice. In the short term, however, greater awareness by Chinese workers of the limited rights already available to them could yield some workplace improvements.

Workers and labor experts in China and elsewhere recognize that the ACFTU, the only legal labor organization in China, is ineffective as a voice for worker rights. Article 11 of China's Trade Union Law states that all basic level unions must be approved by the next higher level of union, ensuring state control of any locally-formed worker organizations. In testimony at a July 2003 Commission roundtable, Phil Fishman of the AFL-CIO stated that "... institutionally the ACFTU is a creature of the Chinese state and Communist Party and is obligated by its own rules to act as a transmission belt for Party and state policy."(110)

Chinese workers are generally unaware of the limited rights to organize already available to them. These rights are contained in the Trade Union Law but are implicit rather than explicit. The law requires all worker organizations to affiliate with the ACFTU, but does not state explicitly that the ACFTU must be involved in the establishment of new unions.(111) This allows, in theory, for workers to organize a union chapter and then seek affiliation. This has not, however, happened to date, and would likely be very difficult in practice.

Han Dongfang, Director of the China Labour Bulletin, a Hong Kong-based publication, testified to a November 2002 Commission roundtable that government efforts to improve workplace safety had been ineffective due to a lack of worker involvement. Han added that a new workplace safety law (effective November 1, 2002) calls for workers to be involved in workplace safety, which suggests the possibility of workers organizing for specific purposes.(112)

Similarly, at an April 2003 Commission roundtable, Doug Cahn, Vice President for Human Rights Programs at Reebok International, Ltd., described Reebok-facilitated elections for worker representatives at two Chinese factories.(113) Cahn described the elections as free, open and fair, and consonant with Chinese labor law. These elections suggest that existing Chinese law may be sufficiently flexible to allow workers to select their own leaders in some circumstances, notwithstanding legal limits on the creation of independent labor unions. Cahn also indicated that it is too early to predict whether the Reebok elections will affect the workers' ability to assert their rights in the future. Without training for elected leaders on how to represent workers' rights and claims, these organizations are unlikely to drive significant change. Moreover, given the practical limitations on establishing independent worker organizations, the elections sponsored by Reebok may be seen as a small but positive step forward, but they do not represent a significant advancement of freedom of association in China. Without independent labor unions and the ability of workers to organize freely and represent themselves, collective bargaining cannot truly be said to exist in China.

Legal action against workers who attempted to establish independent worker organizations continued over the past year. In May 2003, a court in Liaoyang, Liaoning Province convicted labor protest leaders Yao Fuxin and Xiao Yunliang of subversion and sentenced them to 4 and 7 years in prison respectively. The pair led peaceful protests in Liaoyang during March 2002 and were detained before trial for almost a year. In June 2003, their appeal of the convictions was denied. Neither family was notified of the appeal proceedings, nor were their lawyers present.

Working Conditions

Over the past year, generally poor working conditions in Chinese factories have not changed significantly. Amidst rising concern in the United States about the loss of U.S. manufacturing jobs to China, the ability of Chinese employers to avoid the expense of meeting international labor standards has continued to be a factor in China's competitive advantage.

Workplace Health and Safety

Poor to non-existent enforcement of existing regulations, rather than a lack of adequate legal provisions, is the determining factor behind China's unsafe workplaces. Mines continued to be the most hazardous of China's many dangerous workplaces. In a meeting with officials of the Department of Labor's International Labor Affairs Bureau (ILAB) in August 2003, officials of China's State Administration for Work Safety indicated that 6,995 Chinese miners died on the job in 2002. At a Commission roundtable held in November 2002, Han Dongfang of the China Labour Bulletin cited Hong Kong press reports that 100,000 Chinese workers died in Chinese workplaces between January and September 2002.(114)

Government bodies do not enforce existing safety regulations in most Chinese workplaces, meaning that many Chinese-made products purchased in the United States are produced under conditions that would be unacceptable to most Americans. Discussing a new health and safety law and the chemical handling directives that went into effect in November 2002, labor scholar Trini Leung told a Commission roundtable that, "This law is the culmination of over a decade of efforts and resources . . . [and] 1 week into its effective date, it's not too early to announce that this statute will, just like hundreds of other laws in China . . . become another meaningless document sitting on the shelf while violations go from bad to worse."(115)

Wages and Working Hours

In much of China, particularly in the export-producing areas of southern China, workers continue to work hours well in excess of legal limits, and for wages that are frequently not calculated according to law. According to Chinese labor law, the regular workweek is limited to 8 hours per day, 5 days per week (40 hours).(116) Overtime is limited to 3 hours per day and 36 hours per month unless special permission is sought and certain conditions met. Overtime on regular workdays is to be paid at 150 percent of base pay (time and a half), 200 percent on weekends (double time), and 300 percent on national holidays (triple time).(117) Numerous conversations between Commission staff and Chinese, Hong Kong and U.S. NGOs involved with labor issues, as well as with U.S. and European companies, indicate general agreement that workers in China are frequently required to work in excess of legally allowed overtime, and that overtime pay is frequently calculated at the same rate as work performed during regular work hours, rather than at mandated premium rates.

Codes of conduct adopted by most U.S. companies require workweeks not to exceed 60 hours per week, including overtime. Although this 60-hour workweek exceeds China's legal limits, many companies report significant difficulty in persuading their suppliers to adhere even to this standard.

Prison and Forced Labor

Working conditions in many privately owned Chinese factories are such that workers cannot refuse overtime, but observers disagree whether this practice meets the definition of forced labor. However, forced labor in other forms is common in China. Called laojiao and laogai in Chinese (depending whether the prisoner is detained for "re-education through labor" by administrative means without trial or forced to engage in labor while serving a formal criminal sentence), forced labor is an integral part of China's prison system. As discussed in Section III(a), public security authorities have the power to place detainees in "re-education through labor" facilities without trial. Although laogai has been officially purged from the Chinese criminal code, China's criminal justice system continues to force convicted offenders to work in prison facilities. Unlike U.S. prisoners, Chinese prison laborers often cannot refuse to work, and work under conditions that violate China's own law and international labor standards.

Section 307 of the Tariff Act of 1930 (10 U.S.C. § 1307) prohibits the import of goods made by prisoners into the United States. To promote effective enforcement of Section 307, the United States-China Relations Act of 2000 created a "Task Force on the Prohibition of Importation of Products of Forced or Prison Labor from the People's Republic of China." To date, the Task Force has been concerned principally with implementation of a 1992 U.S.-China Memorandum of Understanding, which allows U.S. Customs to request permission to visit Chinese prisons suspected of producing goods for the U.S. market. A 1994 bilateral Statement of Cooperation clarified procedures to be followed in requesting and making these inspections.

After 1994, Chinese authorities stopped agreeing to inspection requests from U.S. Customs. However, the Chinese government agreed in mid-2002 to cooperate in clearing the backlog of old requests and allowed a visit to a site suspected of producing goods for the U.S. market in the mid-1990s. Although as a result of the lack of Chinese cooperation, several years had elapsed since the original allegation was made, U.S. Customs inspectors found no evidence that the facility had been producing for export to the United States, or that it had been used recently for production of any kind. Currently, the U.S. government counts a total of 18 outstanding requests for prison site visits, most of which were filed between 1995 and 2002. The integration of the U.S. Customs Service into the new Department of Homeland Security delayed efforts to continue the inspections process. The Task Force was not reconstituted until mid-2003.

Goods made in Chinese prisons probably do not constitute a large percentage of overall Chinese imports into the United States. Whatever the scale of the problem, the model of enforcement set out by the 1992 Memorandum of Understanding is inadequate to address the questions raised by complaints. Enforcement of Section 307 currently depends on private individuals or organizations lodging complaints with U.S. Customs. A producer's competitors have the greatest motivation to lodge complaints, but they often lack credible evidence to support their allegations.

State-Owned Enterprises

The collapse of China's state-owned enterprises continued during late 2002 and 2003. Between 1998 and 2002, an average of more than 6,000 companies in China went bankrupt each year, most of them state-owned enterprises.(118) Shrinking employment rolls affect women disproportionately since managers tend to assume that unemployed women will be supported by their husbands, and therefore lay them off first. Significant worker unrest has grown out of the mass dismissals following these bankruptcies, but few details of these protests exist outside China. As a political party nominally constituted to represent and advance the interests of peasants and workers, the Communist Party views worker unrest with particular alarm.

Child Labor

In the past, Chinese authorities generally denied that child labor was a significant problem. News media and private sources reported comparatively few incidents of workplace injury or fatalities involving children in 2003, although reliable information about the severity of the problem is difficult to obtain. New Chinese regulations on the employment of children took effect on December 1, 2002. The employment of children under the age of 16 is banned, with fines of up to 10,000 yuan for violations. The new regulations also require employers to check workers' identification cards, which may help prevent underage workers from being inadvertently hired in some factories.(119) While the new regulations do not provide any significant or fundamental change in China's approach to preventing child labor, when combined with China's ratification on August 8, 2002 of ILO Convention 182 on the Elimination of the Worst Forms of Child Labor,(120) the new regulations may indicate that the problem of child labor is starting to be considered at the national level. However, like other labor problems in China, recognition at the national level rarely translates into full, or even partial, implementation at the local level.

Footnotes

109: The eight core conventions are: Minimum Age Convention, 1973 (Convention 138); Worst Forms of Child Labor Convention, 1999 (Convention 182); Forced Labor Convention, 1930 (Convention 29); Abolition of Forced Labor Convention, 1957 (Convention 105); Freedom of Association and Protection of the Right to Organize Convention, 1948 (Convention 87); Right to Organize and Collective Bargaining Convention, 1949 (Convention 98); Discrimination (Employment and Occupation) Convention, 1958 (Convention 111); Equal Remuneration Convention, 1951 (Convention 100). Text for all conventions can be found at the International Labour Organization's Web site at http://www.ilo.org.
110: Congressional-Executive Commission on China Roundtable, Freedom of Association for Chinese Workers, 7 July 2003, Testimony of Phil Fishman.
111: Decision of the Standing Committee of the National People's Congress on Amending the Trade Union Law of the People's Republic of China, enacted October 27, 2001, art. 11.
112: Congressional-Executive Commission on China Roundtable, Workplace Safety Issues in the People's Republic of China, 11 November 2002, Testimony of Han Dongfang.
113: Congressional-Executive Commission on China Roundtable, Codes of Conduct: U.S. Corporate Compliance Programs and Working Conditions in Chinese Factories, 7 July 2003, testimony of Doug Cahn.
114: Congressional-Executive Commission on China Roundtable, Workplace Safety Issues in the People's Republic of China, 11 November 2002, Testimony of Han Dongfang.
115: Congressional-Executive Commission on China Roundtable, Workplace Safety Issues in the People's Republic of China, 11 November 2002, Testimony of Trini Leung.
116: People's Republic of China State Council Order Number 174, Decision on Amending the "State Council Provisions on Work Hours for Laborers," [Guowuyuan guanyu xiugai "Guowuyuan guanyu zhigong gongzuo shijian de guiding" de guiding], enacted March 25, 1995, arts. 1 and 2.
117: People's Republic of China Labor Law [Zhonghua renmin gongheguo laodongfa], enacted 5 July 1994, arts. 41 and 44.
118: "China: A Boom in Going Bust," Economist Intelligence Unit Executive Briefing, 30 July 2003, http://www.factiva.com (July 7, 2003).
119: "Nation Issues Regulation Banning Child Labor," China Daily, 16 October 2002, (23 September 2003).
120: International Labor Organization, Ratifications of the ILO Fundamental Conventions (As of 23 September 2003), (23 September 2003).