Enterprise Labor Dispute Provisions Emphasize "Harmony" and "Stability," Do Not Address Fundamental Worker Rights Issues

February 28, 2012

On December 1, 2011, China's Ministry of Human Resources and Social Security issued the Provisions on Consultation and Mediation for Enterprise Labor Disputes, effective January 1, 2012. The Provisions impose a new requirement on all medium and large enterprises to establish committees responsible for mediating disputes in the workplace, and the Provisions stipulate some additional, limited protections for worker rights. The Provisions, however, fail to address the fact that workers in China are not guaranteed the right to organize into independent unions, leaving the government, Communist Party, and employers with greater bargaining power in the process of dispute resolution. Workers continued to organize public demonstrations in late 2011 and early 2012 to advocate for their demands in labor disputes, and in some of those cases, officials tasked with maintaining "harmony" and "stability" used force against or detained workers while trying to stop such demonstrations. In addition, recent statements and reports from high-level officials, as well as local governments and Party organizations, indicate a continued emphasis on prioritizing "harmony" and "stability" in dealing with labor disputes.

Provisions Require Medium and Large Enterprises To Establish Labor Dispute Mediation Committees, Outline Limited Worker Rights Protections

The Provisions on Consultation and Mediation for Enterprise Labor Disputes ("the Provisions," available in Chinese via the Ministry of Human Resources and Social Security Web site), if implemented as stipulated, will supplement the existing labor dispute resolution system by requiring all medium and large enterprises to establish "enterprise labor dispute mediation committees" ("enterprise mediation committees," Art. 13), which consist of representatives from an enterprise's workforce and management (Art. 15). Establishing these committees is optional for small enterprises (Art. 14). Under the 2008 PRC Labor Dispute Mediation and Arbitration Law (available in English via the Ministry of Commerce Web site), enterprise mediation committees already existed as an option for labor dispute mediation, but enterprises were not required to establish them. Under the Provisions, parties to a dispute may seek mediation through enterprise mediation committees, or they may seek mediation through "township, village, or neighborhood labor, employment, and social security service centers; or other mediation organizations established in accordance with the law" (Art. 12).

In addition to requiring medium and large enterprises to establish these committees, the Provisions outline other measures that could provide limited protections for workers' rights. Examples include the following:

  • Workers may raise concerns with enterprise mediation committees if they believe there is a problem with an enterprise's implementation of a contract, a collective contract, a labor statute, or an enterprise's internal labor regulations. Mediation committees then have an obligation to verify the content of the complaint and either coordinate with the enterprise to rectify the problem or give an explanation to the workers (Art. 4).
  • The Provisions further clarify the process of "consultations" (xieshang). For example, they specify that if one party does not respond to a request for consultations within five days, it will be considered unwilling to engage in consultations (Art. 10). The Provisions also stipulate that the parties can specify a length of time for consultations (Art. 10) and that an agreement reached through consultations is binding (Art. 11).
  • Under the Provisions, enterprise mediation committees are responsible for publicizing labor laws, regulations, and policies in the workplace (Art. 16(1)).

Provisions Fail To Grant Workers Right To Organize Into Independent Unions, Task Officials With Maintaining "Harmony" and "Stability"

The Provisions make references to protecting workers' rights, but they do not address the fact that workers in China still are not guaranteed the right to organize into independent unions (see CECC 2011 Annual Report, 69-70). Instead, they assign leading roles in protecting worker rights to the government, Party, and employers, failing to grant workers greater power to advocate for their own rights. The Provisions obligate enterprises to "guide workers to protect their rights rationally" (Art. 5) and obligate the Ministry of Human Resources and Social Security (MOHRSS) to "guide enterprises" to respect laws, regulations, and policies related to worker rights (Art. 7(1)). The Provisions do not define the term "rationally." The Provisions also stipulate that the All-China Federation of Trade Unions (a Party-led organization under which all union activity is organized) "may take the initiative to participate in the handling of labor dispute consultations and protect workers' lawful rights and interests" (Art. 9). In some cases, workers have organized public demonstrations to advocate for their demands in labor disputes, and the MOHRSS issued the Provisions amid a series of such labor disputes in various parts of China that garnered international media attention (see, e.g., Agence France-Presse, 26 November 11, reprinted in Google; Guardian, 30 November 11; China Labour Bulletin, 5 December 11).

The Provisions' emphasis on maintaining what officials refer to as "harmony" and "stability" may provide impetus for officials to stop labor disputes without addressing the grievances that underlie such disputes. Several articles in the Provisions emphasize the importance of preventing labor disputes in an effort to maintain "harmony" and "stability" (see, e.g., Arts. 1, 3, 5, 34), and in some recent cases, officials reportedly used force against or detained workers while trying to stop labor disputes in attempts to maintain "harmony" and "stability." Examples include the following (some of these reports describe "confrontations" or "clashes" between workers and police, but none of them confirm that workers used force in any of these incidents):

In addition, recent statements and reports from high-level officials, as well as local governments and Party organizations, indicate a continued emphasis on prioritizing "harmony" and "stability" in dealing with labor disputes. Examples include the following:

  • In remarks printed in the Party-controlled People's Daily (26 December 11, in Chinese), Shen Weichen, an alternate member of the Communist Party Central Committee and Deputy Head of the Party Central Propaganda Department, said, "Harmony in enterprises is the foundation of social harmony, and harmony in labor relations is the crux of harmony in enterprises."
  • Yu Zhengsheng, a member of the Political Bureau of the Communist Party Central Committee and Party Secretary for Shanghai municipality, reportedly said that "establishing harmonious labor relations are important for social harmony, stability, and progress…" (Liberation Daily, 20 January 12, in Chinese).
  • A guiding opinion from the Guangdong Provincial Bureau of Human Resources and Social Security stated that "the ability to appropriately settle [labor] disputes… directly affects social harmony and stability" (13 December 11).
  • A press release on the Web site of the Luhe district, Nanjing municipality, Jiangsu province, Office of the Leading Small Group on Governing the District According to the Law said that a Nanjing court's handling of a major labor dispute case showed the court's "dynamic judicial ideas in… maintaining social harmony and stability" (31 December 11).

For more information on conditions for workers in China, see Section II—Worker Rights in the CECC 2011 Annual Report.