Section 6 Worker Rights
a. The Right of Association
The 1982 Constitution provides for "freedom of association," but qualifying language makes it clear that this night is subject to the interests of the State and the leadership of the Communist Party. The country's sole officially recognized workers' organization, the All-China Federation of Trade Unions (ACFTU), is controlled by the Communist Party. Independent trade unions are illegal. Although ACFTU officials recognize that workers' interests may not always coincide with those of the Communist Party, the ACFTU's primary goals and functions remain to improve labor discipline, mobilize workers to achieve party and government objectives, and to dispense social welfare funds. The 1993 Trade Union Law required that the establishment of unions at any level be submitted to a higher level trade union organization for approval. The ACFTU, the highest level organization, has not approved the establishment of independent unions. Attempts to form or register independent unions have been severely repressed.
The ACFTU's primary attention remains focused on state-sector workers. The Trade Union Law mandates that workers may decide whether to join the union in their enterprise. By official estimate, approximately 8 percent of workers 'in collective and state-owned enterprises have chosen for their own reasons not to join. There have been no reports of repercussions for workers who have not joined ACFTU unions. Diversification 'in types of enterprises over the last decade of reform has vastly increased the number of workers outside the traditional sphere of the ACFTU.
Over half of China's nonagricultural work force is now largely unorganized and outside the state industrial structure, employed in collectives, township and village enterprises, private and individual enterprises, and foreign investment enterprises. hi township and village enterprises, one of the fastest growing sectors of the economy, only a tiny percentage of workers are organized in ACFTU affiliates. Workers 'in companies with foreign investors, even when such companies are located in special economic zones (SEZ's), have the right to form unions provided that the unions are affiliated with the ACFTU. The ACFTU estimates that, as of the end of 1995, 91 percent of foreign investment enterprises had union branches. Anecdotal evidence, however, indicates that union influence 'in such enterprises is weak.
Credible reports indicate the Government has attempted to staimp out illegal union activity. Veteran labor activist Liu Nianchun, who was detained in May 1994 after he tried to register the "League for the Protection of the Rights of the Working People," and again in May 1995 after he had signed a petition calling for labor rights, was sentenced to 3 years of reeducation through labor in July. Labor rights activist Li Wenming and Guo Baosheng were tried in November but by year's end had not yet been sentenced (see Section I.e.).
in March 1994, a petition calling for workers to have "freedom from exploitation," the right to strike, and the right to organize nonofficial trade unions was circulated in Beij' . The authorities detained Zhou Guoqiang, Yuan Hongbing, and Wang Jiaqi after they presented the petition. Zhou is an associate of Han Dongfang, the leader of the Beijing Autonomous Workers' Federation. Zhou was sentenced in September 1994 to 3 years reeducation through labor, although the charges against him were reportedly not linked to the petition. According to reports, he was sentenced in 1995 to a fourth year for an alleged escape attempt. Accurate figures are not available on the number of Beijing Autonomous Workers' Federation detainees still being held for their participation in the 1989 Tianamnen Square demonstrations.
The Government was cited by the International Labor Organization (ILO) during 1996 for its failure to protect the human and trade union rights of Chinese seafarers serving on foreign-flag ships (I]LO complaint number 1819). The case stemmed from a complaint brought against China by the International Confederation of Free Trade Unions (ICFTU) 'in January 1995, regarding the Government's arrest of Chinese seafarers who had requested the assistance of the International Transport Workers' Federation (ITF) to improve their wages and working conditions. The Government detained three of the seafarers for 2 1/2 years and confiscated their seamen's documentation and evidence of qualifications. The ILO's Committee on Freedom of Association (CFA) in its subsequent recommendations urged the Chinese Government to "refrain 'in the future from having recourse to any act of antiunion discrimination, especially the arrest and detention of Chinese seafarers who pursue their legitimate grievances through the organizations o
f their choice."
The right to strike, which had been included 'in China's 197 5 and 1978 constitutions, was removed from the 1982 Constitution on the ground that the Socialist political system had eradicated contradictions between the proletariat and enterprise owners. The Trade Union Law assigns unions the role of mediators or go-betweens with management in cases of work stoppages or slowdowns. Beginning in 1993, the Ministry of Labor stopped officially denying the existence of strikes, but strikes are still not officially sanctioned, and accurate statistics on strike incidents are not available. One unofficial, yet credible 1995 estimate put the number of work stoppages at 1,870. In March 600 workers went on strike to protest unpaid back wages and excessive overtime at a joint venture hardware manufacturing factory 'in the Shenzhen SEZ. In Wuhan, according to reports, -unemployed workers have repeatedly staged sit-down ' f
protests in front of the entrances of the Wuhan government and Hubei provincial government offices. Six hundred people participated 'in the largest demonstration.
A dispute settlement procedure has been 'in effect since 1987. The procedure provides for mediation, two levels of arbitration committees, and a final appeal to the courts. According to official statistics based on National Mediation Center and Labor Bureau records, labor disputes increased by approximately 73 percent in 1995. This followed a 65 percent 'increase during 1994. Most cases are solved through arbitration, and very few reach the courts. According to @stry of Labor officials, the majority of arbitration cases are filed by contract workers or their employers. During 1995, 23,000 labor disputes were brought before arbitration committees.
There are no provisions allowing for 'individual workers or unofficial worker organizations to affiliate with international bodies.
b. The Right to Organize and Bargain Collectively
The National Labor Law, which took effect on January 1, 1995, permits workers in all types of enterprises to bargain collectively. This law supersedes a 1988 law that allowed collective bargaining only by workers 'in private enterprises. The Labor Law provides for workers and employers at all types of enterprises to sign 'individual as well as collective contracts. Collective contracts are to be worked out between ACFTU or worker representatives and management and specify such matters as working conditions, wage distribution, and hours of work. Individual contracts are then to be drawn up in line with the terms of the collective contract. Collective contracts must be submitted to local government authorities for approval within 15 days. As of August, approximately 44 percent of China's industrial work force were officially on collective contracts.
To date, union and labor officials report the initiation of only a few experiments in collective bargaining. Official sources have explained that sufficient ideological and practical difficulties remain to preclude drawing clear distinctions between labor and capital 'in China's state-owned enterprise sector. According to the ACFTU, collective bargaining is being implemented first 'in foreign 'investment enterprises where capital interests are clearly delineated.
The Ministry of Labor sets a total wage bill for each collective and state-owned enterprise according to four criteria: 1) as a percentage of profits, 2) as a contract amount with the local labor bureau, 3) for money losing enterprises, according to a state-set amount, or 4) as an enterprise-set amount subject to Labor Ministry review. Individual enterprises determine how to divide the total among workers, a decision usually made by the enterprise manager in consultation with the enterprise party chief and the ACFTU representative.
Worker congresses are authorized to review plans for wage reform, although these bodies serve primarily as rubber-stamp organizations. Wages are generally equal for the same type of work within enterprises. Incentives are provided for increased productivity. Under the National Labor Law, wages may be set according to conditions stipulated in collective contracts negotiated between ACFTU representatives and management. In practice, however, only the small number of workers with high technical skills can negotiate effectively on salary and fringe benefits.
Worker congresses theoretically have the authority to remove incompetent managers and approve major decisions affecting enterprises, notably wage and bonus distribution systems. The congresses generally, however, take place only once a year and serve essentially to approve agreements worked out among factory managers, party secretaries, and ACFTU representatives. In smaller enterprises it is not unusual to find these three posts held by the same person. The Trade Union Law prohibits antiunion discrimination and specifies that union representatives may not be transferred or terminated by enterprise management during their term of office. Unionized foreign businesses generally report pragmatic relations with ACFTU representatives.
Laws governing working conditions in SEZ's are not significantly different from those 'in the rest of the country. Wages 'in the SEZ'S, however, and in southeastern China generally, are significantly higher than 'in other parts of the country because high investment has created a great demand for available labor. As in other areas of China, officials admit that some foreign 'investors in SEZ's are able to negotiate "sweetheart" deals with local partners that effectively bypass labor regulations.
c. Prohibition of Forced or Compulsory Labor
Some penal facilities contract with regular industries for prisoners to perform light manufacturing and assembly work. hi 1991 the Government published a reiteration of its regulations barring the export of prison-made goods.
On August 7, 1992, the U.S. and Chinese Governments signed a Memorandum of Understanding (N40U) prohibiting trade in prison labor products. A statement of cooperation (SOC) detailing specific working procedures for implementation of the MOU was signed on March 14, 1994. Although the signing of the SOC initially helped to foster a more productive relationship with the authorities, cooperation has been limited recently. In 1996 the authorities granted access to only one prison labor facility requested by U.S. Customs. Repeated delays 'in arranging prison labor site visits called into question the Government's intentions regarding the implementation of the MOU and SOC.
In addition to prisons and reform through labor facilities, which hold inmates sentenced through judicial procedures, the Government also maintains a network of reeducation-through-labor camps, where inmates are sentenced through nonjudicial procedures (see Section I.e.). Inmates of reeducation-through-labor facilities are generally required to work, but the authorities assert that the facilities are not prisons and have denied access to them under the 1992 prison labor MOU with the United States. Reports from international human rights organizations and the foreign press indicate that at least some persons in pretrial detention are also required to work.
Most anecdotal reports conclude that work conditions in the penal system's light manufacturing factories are similar to those 'in other factories, but conditions on the penal system's farms and 'in mines can be very harsh. As 'in many Chinese workplaces, safety is a low priority. There are no available figures for casualties in prison industry.
d. Minimum Age for Employment of Children
The National Labor Law specifies that "no employing unit shall be allowed to recruit juveniles under the age of 16. " Administrative review, fines, and revocation of business licenses of those businesses that hire minors are specified in Article 94 of the Labor Law. The law also provides for children to receive 9 years of compulsory education and to receive their subsistence from parents or guardians. Laborers between the ages of 16 and 18 are reflected to as "juvenile workers" and are prohibited from engaging 'in certain forms of physical work, 'including labor in mines.
The Ministry of Labor is responsible for the enforcement of labor-related regulations. The Labor Law mandates the establishment of labor 'inspection corps at all administrative levels above county government. The rapid growth of the nonstate sector, however, has outpaced the evolution of government regulatory structures and resulted in inadequate labor 'inspection and enforcement regimes. In poorer, isolated areas, child labor in agriculture is widespread, given the few options available to minors who have completed their primary school education at approximately 13 years of age.
The vast reserve of surplus adult labor, however, minimizes the incentive to employ children. Most independent observers agree with Chinese officials that urban child labor is a relatively small problem 'in formal, monetized sectors of the economy. Rising dropout rates at secondary schools in some provinces and anecdotal reports suggest that children may increasingly be entering unregulated sectors of the economy. It has been reported that the Government puts the number of children between the ages of 6 and 14 who did not attend school 'in 1995 between 13 and 24 million. Us' this report, there is one estimate that approximately 12 million children are 'in the work force full time. No specific industry is identifiable as a significant violator of child labor regulations.
e. Acceptable Conditions of Work
The Labor Law codifies many of the general principles of labor reform, setting out provisions on employment, labor contracts, working hours, wages, skill development and training, social insurance, dispute resolution, legal responsibility, supervision, and inspection. There is no national minimum wage. Rather, the Labor Law allows local governments to determine their own standards on minimum wages. In general, minimum wage level determinations are higher than the local poverty relief ceiling but lower than the current wage level of the average worker.
In December the monthly minimum wage in Beijing was raised to $32.50 (RMB 270) from $29. In the Shenzhen and Zhuhai SEZ's in south China, the monthly minimum wage was approximately $48 (RMB 398). inn wage levels were raised in 12 provinces in December. Although these wage levels may be slightly greater than average living expenditures according to some official statistics, they would provide only a very basic standard of living for a worker and family. um wage figures do not, however, 'include free or heavily subsidized benefits that some state-sector employers may provide in kind, such as housing, medical care, and education. In poorer, rural areas monthly minimum wage levels are as low as $14 (RUB 120). Official government estimates put the number of people living in absolute poverty at 65 million; other estimates range to 350 million.
China reduced the national standard workweek in May 1995 from 44 hours to 40 hours, excluding overtime. The Labor Law mandates a 24-hour rest period weekly and does not allow overtime work in excess of 3 hours a day or 36 hours a month. It also sets forth a required scale of remuneration for overtime work. Enforcement of regulations regarding overtime work van'es according to region and type of enterprise. The official press regularly reports cases of workers forced to work long overtime hours at small-scale foreign 'investment enterprises, particularly 'in southern China and the SEZ'S. Abuses at private enterprises are sometimes also given coverage.
Occupational health and safety are constant themes of posters and campaigns. Every work unit must designate a health and safety officer, and the ILO has established a training program for these officials. Although the 1982 Constitution does not provide for the right to strike, the Trade Union Law explicitly recognizes the right of unions to "suggest that staff and workers withdraw from sites of danger" and participate 'in accident investigations. It is unclear, however, to what extent workers can actually remove themselves from such dangerous situations without risking loss of employment.
Pressures for increased output, lack of financial resources to maintain equipment, lack of concern by management, and a traditionally poor understanding of safety issues by workers have contributed to a continuing high rate of accidents. According to one official survey, 18,160 people died, and 6,005 people were injured in 1995 due to work-related accidents, a decrease from 1994. Over 10,000 of the deaths occurred as a result of mine accidents. According to the Ministry of Public Health, over 75 million workers are at risk from occupational respiratory diseases such as pneumoconiosis due to poor working conditions. Less than half of rural enterprises meet national dust and poison standards. Many factories using harmful products, such as asbestos, fail not only to protect their workers against the ill effects of such products, but also fail to inform them about the potential hazards.
Poor enforcement by local officials of occupational safety and health regulations continues to put the lives of workers at risk. Work safety issues have, however, attracted the attention of senior government leaders. In August the National People's Congress sent seven 'inspection teams to various provinces to investigate poor enforcement of work safety standards and other labor abuses. The Ministry of Labor is also trying to draft a more rigorous national system of occupational health and safety standards. It is unlikely, however, that supervision of small-scale private and township and village enterprises, where many accidents occur, will improve substantially in the near future.
