China remains an enigma to the rest of the world.  The most populous country in the world, a Communist State, has embarked on substantial economic reforms in the early 80s, allowing for massive foreign capital inflow. Since then, China showed a consistent economic growth, emerging as one of the world powers. China produces 30 per cent of products all over the world. Such enormous changes have necessitated China to address the problems of huge workforce freed from State, collective enterprises and agricultural farms, who now are engaged in private enterprises. What are the rights of Chinese workers; how are these guaranteed in the Chinese Constitution and how are these rights defended? During a recent visit to China, Editor of Labour File J John discussed these issues with Advocate Huan Jun of Sichuan Dazhou County Labour Rights Centre, Changan County, Guangdong Province.

I have heard that you fought a foreign company in Guangdong. Please

explain.

In 2001, I came to know that a foreign company manufacturing plastic goods, which set up a unit in Baoan County, was discriminating against migrant workers who are from a particular province. I filed a case against the management in the labour court. The issue was extensively covered in the press and television (CCTV). The management apologised to migrant workers for their workplace attitude and changed their behaviour.

Are Chinese workers protected by law?

Chinese workers are protected by law. In the early years of reform period, emphasis was more on attracting foreign investments. Now, the government has realised that the interests of the workers cannot be undermined. The Trade Union Law 1994 of the People’s Republic of China has been amended in the Ninth National People’s Congress on October 27, 2001 giving more teeth to trade unions to take up labour rights violations.

What are considered as labour rights violations in China, as per the law?

Article 22 of the Trade Union Law considers non-payment of wages as labour rights violation. It also talks about failure to provide occupational safety and health at work place, arbitrary extension of working hours, infringement upon the special rights and interests of female workers etc.

Does China have Minimum Wages?

China does not have a national level minimum wage. It is decided at the tripartite meeting between employers, government and the trade union in each city according to the living standard of that city. In Changan County, it is US$ 55 per month. In Guangdong Municipality it is RMB 510 (US$ 64). However, many workers do not get minimum wages.

What are the legal working hours?

The law stipulates 8-hour per day; 5 days a week and that over time should not be more than 36 hours per month. These provisions are often violated in enterprises. Workers usually work 10-11 hours a day; they work during rest days and the overtime may at times be double than what the law says.

What other major labour rights violations do workers face?

Unfair dismissals are rampant in the private enterprises. According to the law, workers should be compensated if they are dismissed; but dismissed workers are not compensated. There are many instances of occupational accidents and diseases. But employers do not bother to compensate workers in such instances.

Who are the workers?

The industrialisation of Pearl River Delta attracted many Hong Kong-owned and foreign factories into the region. Twenty-five years ago, the PRD was dominated by arable farming and small rural villages. Hong Kong investment has turned the region into the mainland`s economic powerhouse. The mushrooming of industrial cities in the PRD region has attracted a massive influx of farmers from the rural area to the coastal area to find better pay jobs since mid-80s. These migrant workers ensure a ready and stable supply of labour; and offer stable workforce at low labour costs. Many companies use Hong Kong managers, or Hong Kong-trained managers to run their operations. It has been estimated that there are about 100 million migrant workers in China. Estimates are that there are about five million migrants in Changan County and 23 million in Guangdong Province. The sizes of the enterprises vary; some have more than 20,000 workers under a single roof. Moreover, the Chinese industrial sector is experiencing significant restructuring in recent years, and especially after China’s entry into WTO. Large scale privatisation is taking place in the state sector; big enterprises are made into viable small enterprises. Workers are laid off, especially those in their middle ages. However, these laid off workers will enter into a different contract. They will maintain their membership with the trade union for another two years, during which they are entitled to the benefit of rejoining. Trade union provides them training for skill development and facilitates getting employment elsewhere. If even after three chances, they remain unemployed, the retrenched workers can avail unemployment benefit.

Do workers enjoy security of employment?

According to our national law, the enterprises are expected to enter into a contract with each worker and maintain three copies of the contract. They are also expected to provide workers with factory identity cards which are seen as important document when they are checked by the police in the streets. However, private enterprises do not enter into contract with all workers. Moreover, the contract will be for two to three years; there are no permanent employment contracts. This situation is also the result of the household registration system in practice since 50s, under which migrants do not have the right to stay and live permanently in the cities where they are working. They are only given temporary resident permits.

Since most of the workers are migrants, where do they live during their tenure?

Workers reside in the dormitories provided by the companies. These dormitories have facilities of water and electricity. All these facilities are given free of cost or at low cost to the workers. Where the dormitories are within the factory premises, employers use them as a control mechanism to their advantage.

How do workers respond to labour rights violations?

Workers are generally passive, because they are migrants and are under short term employment contracts.

What prevents them from approaching the court of law for justice?

The law gives workers right to approach court of law for justice; but workers generally, do not go to court. There are many reasons. The time spent in the court is not very productive. Most importantly, if they go to court, their employer will fire them and they will be without a dormitory to live. Moreover, hiring lawyers is expensive and there are few labour lawyers who would provide free legal services. Despite this, the instances of workers individually taking up cases are increasing, aided by the professional approach of the new judges to evaluate each case by merit.

In normal circumstances, how long will it take for a labour case to be resolved?

In China, labour disputes are first referred to labour arbitration. Then it goes to the local civil court and later to the high court. All these will be over within a period of one and half years.

Since China has only one formal trade union, All China Federation of Trade Unions, will a worker naturally become its member?

A worker does not automatically become a member of the ACFTU. The basic level trade union is formed in an enterprise with a membership of 25 or more. In enterprises having less than 25 members, trade unions can be formed jointly with other enterprises. Joint basic-level trade unions are set up at townships. Local trade union federations are set up in places at or above the county level. Besides these, there could be industrial federations at national or local levels. All trade unions are unified at the national level under ACFTU. Therefore, it does not mean that all enterprises will have trade unions; where trade unions exist all workers will become its members and they will diligently take up the issues of workers.

Do workers have the right to strike?

Chinese workers, now, do not have the right to strike. It was there in the Constitution till 1982.

As a labour rights lawyer, how do you see the prospects of labour rights being observed in China?

We are determined to defend constitutional rights of workers and to work towards expanding its base.