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The Key Role of Workers in China's Legal Development
The nascent workers' movement in China is helping to drive the county's legislative development, CLB Director Han Dongfang told a Congressional-Executive Commission on China hearing in Washington DC on 18 June.
Three major labour laws have been promulgated in the last year, and local governments across China have introduced new regulations aimed at protecting workers' rights and improving relations between labour and management. Han pointed out in his testimony to the hearing on What Will Drive China's Future Legal Development? Reports from the Field, that these laws have not been introduced because the government is particularly enlightened, but because workers' protests against widespread and continued rights violations left it with little option but to change the law, as a means of forestalling increased labour conflict.
Han stressed, however, that legislative change was in and of itself not enough; laws have to be enforced and workers must be allowed to exercise their rights. More and more workers are using the labour arbitration and court system to seek redress for violations of their rights, and the majority of worker law suits have been successful. However, Han said, much still needs to be done. Both the All China Federation of Trade Unions (ACFTU) and non-governmental organizations (NGOs), he said, had a key role to play in protecting and supporting workers' rights and in establishing a system of peaceful and constructive dialogue between labour and management.
Han noted that the tremendous outpouring of good will after the Wenchuan earthquake had given the central government in Beijing a historic opportunity to maintain and enhance public support by actively encouraging the participation of NGOs, ordinary citizens, particularly workers, in the future development of civil society in China.
"If it has the vision and courage to do so," Han said, "Beijing will take a significant step towards realizing its own goal of creating a 'harmonious society,' one in which citizens not only have confidence in and respect for the law, but also are active participants in the legal process and play a role in promoting greater social justice for all."
Han's written testimony The Prospects for Legal Enforcement of Labor Rights in China Today – A Glass Half Full is published here as a PDF and will also be available on the CECC website.
To illustrate his testimony, Han used the example of a newspaper article written in the New Express (Xinkuaibao) on 5 June 2008 by Chen Yu of the Shantou Federation of Trade Unions, arguing that new draft regulations issued by the Shenzhen municipal government effectively brought the largely taboo subject of strike action within the scope of legal regulation. And as a result, the legal right to strike was now "only one step away."
The article is significant for its candid assessment of the current balance of power in labour relations, the ineffectiveness of the ACFTU in organizing workers ("an embarrassing joke") and union's inability to support strike action. The article demonstrates that, in some union branches at least, officials are taking their responsibilities towards workers seriously and are actively seeking ways to both empower employees and protect their legal rights.
Shenzhen is One Step Away from the Right to Strike
The Shenzhen Municipal People's Congress Standing Committee recently published the Draft Regulations on the Growth and Development of Harmonious Labour Relations in the Shenzhen Special Economic Zone. These regulations are of groundbreaking significance, both because they are reportedly China's first legislative document on "harmonious labour relations," and because the Standing Committee actively solicited public opinion before publishing them.
The most impressive aspect of the Draft Regulations is that it lays down more reasonable standards on the respective status and responsibilities of employees, employers and the government. It clearly asserts that to build harmonious labour relations, employers and workers have to engage in consultation on the basis of equality, abide by the law and exercise self-discipline, the government has to coordinate and supervise the process, ordinary citizens have to participate in it, and fairness and justice has to be maintained.
In view of the fact that in today's China employers are beyond any doubt the strongest party in the labour relationship, the establishment of more harmonious labour relations must begin by adjusting the balance of power between employers and employees. An individual worker within a big company is as powerless as a tiny ant before a big tree. The only way for workers to get things moving and solve their problems is to team up and join forces.
China's trade unions have the world's best organizational framework and largest membership roster, but their real status is an embarrassing joke. Political meddling throughout the system has prevented genuine and effective union organizing. Therefore, when the government takes its responsibilities seriously, trade unions need to do so too.
After the Chinese Constitution was amended in 1982, the word "strike" (bagong) became taboo in Chinese legislation. It was replaced by references to "shutdowns" (tinggong) and "slowdowns" (daigong). Most lamentably, the (amended) Trade Union Law of 2001 stipulates: "When a work-stoppage or slow-down occurs in an enterprise or institution, the trade union shall ... assist the enterprise or institution in its work so as to enable the normal production process to be resumed as quickly as possible" (Article 27). Rules of the game that deny workers the right to collective action effectively reduce them to collective begging.
The fact that trade unions are not only unable to stand clearly with workers but must also perform thankless tasks on behalf of employers manifestly shows that they remain in a subordinate position.
Although the Draft Regulations does not go so far as to call a strike a strike, and continues to refer to work stoppages, slowdowns and lockouts, it no longer insists that when such incidents occur, trade unions have to help enterprises resume production as quickly as possible. This fact in itself gives trade unions some room for manoeuvre. What makes the Draft Regulations even more groundbreaking is that it stipulates that when a major strike occurs, the government may issue an order prohibiting management and workers from taking any action for a period of 30 days that is liable to exacerbate the dispute. By clearly stipulating the rights and obligations of employers and workers, the Draft Regulations has, in fact, brought industrial strike action within the scope of legal regulation.
We are only a step away from the right to strike. This paper-thin barrier can be breached. These regulations fully embody Shenzhen"s pioneering spirit.
We can safely assume that if the Draft Regulations are approved, it will quickly prompt employers, workers and the government to assume their respective responsibilities to jointly build harmonious labour relations.