- Elise Potaka, Beijing
- October 4, 2008
A coalminer takes a bath after finishing his shift at a mine in northern China's Shanxi province. Photo: Reuters
XIAO Huazhong's lungs are letting him down. The former coalminer from China's Sichuan province has third-stage pneumoconiosis, or "black lung disease", and even the five-minute walk from the local store to his house can leave him struggling for breath.
Chinese coalmines have a notorious health and safety record. Official figures put the death toll last year from mine-related accidents at 3786, but the number does not include victims such as 59-year-old Mr Xiao, who are facing a much slower death.
Between 1995 and 2002, Mr Xiao worked in several small mines not far from his home village. At the time, he says he didn't consider the health impacts. Earning about 1000 yuan ($A190) per month, the job was a good way for the illiterate father of two to get ahead. Mr Xiao also says he was never asked by his employer to undergo a health check, a requirement by law, when he stopped work.
Now all his money is gone, spent on check-ups and medicines. "I can't work any more," he says. "Since 2003 I've spent around $10,000. I've spent all my money, there's no way out."
There's certainly no way to get back his health, but there might be a way to alleviate the financial burden. Mr Xiao is taking his former employer to court, demanding compensation. Lawyer Yu Fangqiang, who has offered his services pro bono, says the case rests on personal injury compensation regulations under China's civil law.
According to Mr Yu, the case is rare as labour disputes are more often solved through arbitration or mediation.
Previously, there was one successful case involving compensation for work-related silicosis at a jewellery factory, but this could be a first for China's coal industry.
Mr Xiao and his family realise the significance. His son, Dan Zhengfu, says his father represents the many miners with work-related illnesses. Chinese state media say there are more than 600,000 workers nationwide suffering from pneumoconiosis, with 7500 to 10,000 new cases each year. Mr Xiao can rattle off a list of former colleagues who are sick.
His dispute is part of a growing number of "public interest litigation" cases in China, in which non-government organisations and lawyers work side by side on a case that represents more than just one individual's grievance.
But the fight to build a case and get a fair hearing is not always easy in small-town China. Last year, when Mr Xiao first approached the court and the local labour bureau armed with his health records and a copy of the relevant government policy, he was turned away. Subsequent attempts to make a complaint through different government offices also came to nothing.
Each office put forward a different excuse, and Mr Xiao and his supporters believe his well-connected former employer obstructed the way. The mine owner not only provides employment for more than 400 people in the area, but he is also a member of the county People's Congress, the local-level parliament.
A Hong Kong-based labour rights group, the China Labour Bulletin, helped Mr Xiao find legal help. The group's Geoff Crothall says most of the hard work is spent in getting local courts to hear miners' rights cases.
"Local mine owners and government officials are often the same person," he says. Even if there is no direct connection, "it's in everybody's interest to boost economic production" by keeping mines open, regardless of health and safety breaches.
On the positive side, once a case is accepted, Mr Crothall says a litigant is much more likely to win than an employer by a ratio of about four to one. But he warns there are always exceptions, especially in situations such as Mr Xiao's in which local government officials or police are involved.
The lawyer, Mr Yu, is also cautious, pointing out that the civil law system does not recognise judicial precedents as binding in later cases. This means that the success of the silicosis compensation case can have no direct impact.
And even if Mr Xiao wins, it does not necessarily mean that it will be easier for other miners to get compensation.
Mr Crothall hopes there will be another important outcome from Mr Xiao's fight. Many coalminers, he says, are "really only concerned with getting enough wages to live on today. They don't really think about the consequences once they leave a mine, and they're not aware of the problems of work-related illness or accidents until they actually happen."
Mr Crothall sees the case as a chance to raise miners' awareness about potential health risks and their rights under the law.
The first exchange of evidence took place last month. A local court official acknowledged that the case was before the court, but was unable to disclose its current status.
For now, Mr Xiao and his family must wait for notice of another hearing or a decision.
Mr Xiao says that after all the problems getting the case to court, all he asks is that officials "follow proper procedure". If they refer to the correct laws and documents, "we will be satisfied", he says.