In 2008, Beijing implemented three major new labour laws and many local governments further bolstered the protection offered to workers with a wide range of local laws and regulations. Yet despite the flood of new labour legislation, enterprises and employers across the country are still effectively operating outside the law, withholding wages and social security payments, refusing to pay work-related injury and illness compensation, and sacking employees with virtual impunity.
The reason for this apparent paradox is simple, local governments across China lack the ability and or the inclination to enforce the law, especially when strict enforcement of national labour legislation and regulations would put them at an economic disadvantage.
However, even if the local government is unwilling to enforce the law, workers can still seek redress through China’s well-established institutions of mediation and arbitration and the court system. Indeed, official figures show that once a labour dispute case is accepted by a court of law, the worker plaintiff has a much greater chance of winning than the employer defendant. In both 2005 and 2006, plaintiffs were nearly four times more likely to win labour dispute cases outright than defendants, according to the China Labour Statistical Yearbook. This is partly because the violations of labour rights in these cases were so egregious and blatant that the court had no option but to rule for the plaintiff, but also because in most labour rights cases, unlike political rights cases, courts will rule according to the letter of the law.
China Labour Bulletin has been actively involved in labour rights litigation since 2003, and now runs one of the largest such programmes in mainland China. It has co-operative links with six law firms and non-governmental organizations across the country, as well as hundreds of individual lawyers. The aim of the programme is to provide workers who cannot afford legal and court fees, and who have a legitimate grievance, with a high-quality and effective legal defense in court and or determined representation in mediation or arbitration proceedings. To this end CLB cooperates with lawyers who specialize in workplace discrimination and work-related injury cases, as well as advocates handling disputes over the non-payment of wages, pension, redundancy and economic compensation cases.
In 2008, CLB and its partner organizations adopted close to 600 new labour rights cases, involving more than a thousand worker plaintiffs and concluded about 430 cases in this period. The worker plaintiffs won in more than 95 percent of the concluded cases, obtaining compensation for work-related injury, recovering unpaid wages, getting job reinstatement, or obtained other benefits such as labour insurance payouts. In total, the workers obtained 10.3 million yuan in compensation and other benefits.
For CLB, labour rights litigation is a form of public interest litigation. It seeks to address issues that affect society as a whole or a specific social group rather than just one individual. For example, a case brought by someone refused employment because they carry the Hepatitis B virus is clearly in the interest of the more 120 million people living with HBV in China today as well as in the private interest of the litigant. To date, CLB has taken on over 30 HBV cases and achieved notable success, not only winning substantial payouts for plaintiffs but through the publicity generated by the cases, raising public awareness of HBV discrimination and affecting change in corporate behaviour. In April 2008, for example, the same day that an employee refused employment at Changshuo Technology, the Shanghai-based subsidiary of Taiwanese computer manufacturer Asus, successfully concluded his high-profile lawsuit, the Shanghai Public Health Bureau stipulated that HBV testing would no longer be routine for prospective employees and that the city’s medical examination forms were being modified accordingly.
Of course it is not all good news. Even when workers win compensation in HBV discrimination cases, the courts will sometimes require them to sign a confidentiality agreement barring them from discussing the case with the media or publicly revealing the amount of compensation awarded. This kind of gagging order, clearly designed to protect the employers’ interests, is a worrying development in that it prevents news of significant compensation awards getting into the public domain and serves to protect companies from similar lawsuits.
CLB has noted that in many other cases, where the interests of major local corporations or state-owned enterprises (SOEs) are at stake in a lawsuit, courts are much more reluctant to rule in favor of the plaintiff. For example, when Zhang Guangli lost four fingers of his left hand operating machinery at the No.1 Steel Plant in Anshan, his employer, Angang New Steel Co Limited, agreed to pay for his medical treatment but not to provide the work-related injury and disability compensation required by law. In May 1994, one year after the accident, Zhang sought redress through his local Labour Dispute Arbitration Committee. Even though Zhang’s injury was clearly work-related, it took six years for the labour bureau to certify it as a grade six disability and another seven years before the courts brokered a “mediation agreement” in which Angang New Steel undertook to pay Zhang 20,000 yuan in compensation, and a disability pension equivalent to 70 percent of his average wage at the enterprise. The reason it took 13 years for an employee seriously injured at work to obtain the compensation he was entitled to under the law was that Angang Steel was the most powerful corporation in the city of Anshan, more powerful in fact than the city government. And even though 20,000 yuan would hardly register with a corporation that recorded sales of 25 billion yuan in 2002, it still took a gargantuan legal struggle to get that miniscule amount out of the company.
Moreover, since 2000, the courts have been effectively prevented from accepting collective labour disputes stemming from the privatization of SOEs by a series of Supreme Court opinions, which classified such disputes as administrative rather than judicial issues. And in 2006, the All-China Lawyers’ Association instructed its members to promptly report relevant information on any collective case they were handling to the government, thereby severely limiting the ability of Chinese workers to secure independent and confidential legal counsel in SOE privatization cases.
The lack of legal avenues available to workers seeking redress during or after the privatization of SOEs often led to mass strikes and protests. As a result, many workers leaders were arrested and tried on charges ranging from “assembling a crowd to disrupt public order,” to the extremely serious political offence of “subversion of state power.” CLB has been active in providing legal representation and mounting a robust defense for workers arrested merely for protecting their own rights and interest. For example, when the 2004 strike at the privatized Xianyang Textile Factory involving nearly 7,000 workers escalated into railway blockade, the provincial government sent in over 1,000 riot police, and around 20 workers were detained. However, CLB’s legal intervention not only secured the release of the arrested workers but helped achieve a settlement of the dispute over severance payments which had triggered the protest in the first place.
Despite the many obstacles that still exist, labour rights litigation is without doubt one of the most effective ways of protecting workers’ rights, especially individual workers’ rights, in China today. Workers are increasingly willing and more determined than ever to stand up for their legal rights, and, hopefully, the new labour legislation enacted in 2008 (Labour Contract Law, Employment Promotion Law and Arbitration Law) will give them the additional resources they need to obtain redress for violations of their rights.
To examine in more detail CLB’s legal case work to date, please browse the case categories listed below:
