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The missing link: Miner struggles to prove labour relationship with former boss
Ma Jixing worked in a small, dusty coalmine outside Beijing for more than a decade before he was diagnosed in 2006 with the fatal lung disease pneumoconiosis. By then, it was already too late. The disease had progressed to Stage Three - terminal stage -Pneumoconiosis.
Ma was entitled to and was eventually awarded substantial damages but his former employer refused to pay up and even counter-sued, claiming Ma had never worked for the company. Ma could not produce definitive evidence to show he had worked at the company because he had never been given a copy of his employment contract, and the ownership of the mine had changed hands over the previous ten years. He lost the lawsuit and ended up spending around 50,000 yuan in legal fees trying to get what was rightfully his.
In April 2011, Ma talked to CLB Director Han Dongfang about his long legal battle that left him largely dependent on his family and unable to afford even the most basic medication. During the interview, Han suggested a range of legal strategies that CLB could support in his case but Ma has yet to follow up on the offer.
Ma worked at the Chechang coalmine in Zhoukoudian, a rural district about 50 kilometres southwest of Beijing that is best known as the site of Peking Man. There were just over 100 miners employed at the mine when Ma started to work there, after moving from his native Shandong in 1995. Ma, who was aged 34 at the time, was hired to do “dry” drilling at the coalface. Although it was a low gas-mine (without a high risk of explosion) and all the miners had protective masks, dust levels were very high, as was the risk of lung disease. Safety meetings were held, but Ma does not recall any inspections by the local government.
Miners had to work every day for a wage of just 800 yuan to 900 yuan a month, although this had more than doubled by 2005. Ma said:
If you skipped work you did not get paid. That meant if you took off weekends, you lost eight days’ pay a month. We worked really hard. The only holidays were during the Spring Festival and the winter break.
The workers did have employment contracts, but the signed originals were held by the company running the mine, the Zhoukoudian Asset Management Company. Ma did not have a copy, nor did he have any work-related injury insurance.
In 2001, Zhoukoudian Asset Management (ZAM) transferred the colliery to the Chechang Brigade in a so-called “poverty relief” scheme, allegedly designed to boost local employment. With the Chechang Brigade carrying out day-to-day operations, the new mine administrator became the Zhoukoudian Chechang Agricultural, Industrial and Commercial Company (Zhoukoudian Chechang Agribusiness Co). Ma claimed the real role of this company was to rundown and eventually closedown the mine. Although working conditions did improve for a while under the new management, the number of miners employed gradually fell to around 50 or 60, and in 2005 the mine was duly shutdown by the authorities. Ma said:
A directive to close the colliery was issued by the State Council because it failed to meet standards. One day we went to work, and after we came back up again, they sealed the shaft.
Looking for compensation
Neither at the time of its closure, nor during the ownership transfer in 2001, did the workers get the health checks they were entitled to under Chinese law. It was only in 2006, when he started to feel unwell, that Ma asked ZAM to arrange a medical check-up. To his shock, the company refused to acknowledge that he had even worked at Chechang. However, five of his colleagues from Shandong, who also had lung problems, did get compensation.
They managed to get health checks somehow and all received money from ZAM... There was also somebody who was injured underground, his leg was crushed and he was recognised as having a work injury. He got 100 yuan every month, which was later increased to 200 yuan.
The only evidence Ma had of his employment was his shift leader’s card, which had credibility because it was issued by a higher authority than the local government. Armed with this evidence, Ma approached the local district Fangshan Public Health Supervision Agency:
Section Chief Wu of the Public Health Supervision Agency issued me with documentation enabling me to get a check-up at Beijing Chaoyang Hospital, which handles occupational illness cases.
Chaoyang Hospital diagnosed Ma with Stage Three Pneumoconiosis. He then followed procedure correctly and got certification of work-related injury from the local labour department, and was given an official work disability grading.
With the necessary documents in hand, Ma filed a case with his local labour dispute arbitration committee, which ruled in his favour and awarded him a lump sum of 91,000 yuan in compensation for disability and related expenses, plus a 1,178 yuan monthly allowance. The company did not challenge the ruling by filing for an “administrative reconsideration” within the statutory time limit – they simply ignored it.
The employer’s counterpunch
Then out of the blue, ZAM sued Ma in the Fangshan District Court claiming he had no employment relationship with the company and therefore was not entitled to compensation from it. The company did acknowledge this time that Ma had worked at Chechang mine, but disputed any direct employment relationship with ZAM. They said Ma had been hired by the mine not the company. The court agreed, and ruled in favour of the company.
Following his lawyer’ advice, Ma appealed the ruling.
There were two sessions. The presiding judge asked them, ‘You were told about these documents, for Occupational Illness Certification and disability certification, which have already come into effect. So why did you not propose administrative reconsideration?‘ The first guy was Tan Guocheng, he’s the general boss, the second time it was Xu Jianzhou, and he said, ‘I do not know, I only took up the post in August 2010,’ so he did not know what went on before. The judge did not react, he just wrote it all down. My lawyer said this was good for the company. We cannot produce evidence and so we will lose the case.
Ma did indeed lose the case. He was told by court officials that he had insufficient evidence and that the court would not take a “historical” perspective — giving ZAM a huge advantage. The judge said he wasn’t interested in anything that had happened more than a year earlier.
Asked by Han why he had targeted ZAM, and not his later employer, Ma said he believed the earlier period he had spent working for ZAM, when mine conditions were worse, was when his illness first developed.
I looked at the Code of Occupational Diseases, and it confirms that if you got your occupational illness while working for an earlier employer, then that earlier employer also has liability.
But it proved to be a flawed strategy because ZAM managed to absolve itself from all responsibility by emphasizing that its links with the miners were severed when the Chechang Agribusiness Company took the pit over and eventually shut it down.
After hiring two lawyers and spending between 40,000 yuan and 50,000 yuan on legal fees and other costs, Ma eventually ran out of money in December 2010. However another lawyer agreed to take on his case pro bono and file another appeal in the high court in Beijing. His case got some media attention as well, with an article published in New Century Weekly (新世纪周刊) in January 2011.
Throughout this time, Ma could not do heavy labour and could only earn a few hundred yuan a month working as a security guard. He was supported financially by his 24-year-old son, who was training to be a machine operator in the construction industry. Despite his illness, Ma said, “I’m not taking any medication. I have no money, how can I take drugs?”
A range of legal options
In response to Ma’s predicament, Han Dongfang outlined a number of legal strategies that he might employ rather than trying to appeal the original judgements in the high court:
Han first pointed out that responsibility for preventing occupational injury and illness lies with the government as well as the employer. Government authorities are responsible, for checking whether or not measures are taken by the employer to stop workers getting illnesses like pneumoconiosis. Under Chinese law, the labour, public health and safety inspection authorities have the power to issue fines, order corrective measures or even apply for mine closure.
Han cited Clause 32 of the Law on the Prevention and Treatment of Occupational Diseases, which states that workers at risk of occupational illness must have health checks arranged and paid for by their employer when they leave, with all results reported back to the workers. Given that the mine was effectively closed down by bureaucrats, through a directive originating with the State Council, the agency that executed the decision could also have liability for any failure to follow legal procedure relating to the closure. In Zhoukoudian, Han argued, the local government department responsible for the closure did not perform its duties, and could be held to account under the law, along with the two direct employers at colliery who failed to provide medical examinations for their employees.
Han said legal action may also be possible under the Pneumoconiosis Prevention and Treatment Regulations, which require local governments to implement occupational illness prevention and monitoring measures. No such measures were ever undertaken — Ma never saw a government inspector underground.
Han also questioned the legality of the mine transfer in 2001, and suggested legal action might be possible under Clause 23 of the Pneumoconiosis Prevention and Treatment Regulations, which states that in cases of transfers of industrial operations involving heavy dust exposure, via outsourcing or joint venture arrangements, to township or individual sole proprietors, the authorities should ensure that adequate dust protection measures are in place. In other words, Han said, if the recipient company did not have proper dust prevention facilities when the mine was transferred to it in 2011, then both the enterprise and the official supervisory organisations could be held liable.
Moreover, Han argued that Ma’s lack of work injury insurance was also due to employer and official negligence. Under Article 5 of the Regulations on Work Injury Insurance, the local Labour and Social Security department is responsible for arranging insurance. The regulations require the office to check unit payrolls and employee numbers, register work injury insurance, and keep records on social security payments. When its checks uncover non-payment of insurance premiums, it orders corrective measures to be taken. In other words, the Fangshan Labour and Social Security Department should have ensured that the miners at Chechang were covered. Similarly, the labour authorities failed to uncover the fact that Ma was not given a copy of his employment contract as required by law.
With such a wide range of fronts to attack on, Han was confident that Ma’s case was winnable, pointing out that:
If authorities had done their job, you would have been able to prove your employment relationship; and you would not have had to run around spending lots of money and wasting energy to prove your employment relationship. Your losses and expenses should be on their tab, you should go after the labour authorities.
Han Dongfang's interview with Ma Jixing was first broadcast in seven episodes in April 2011. To read the full Chinese transcript or listen to the audio file of the broadcast please go to the workers’ voices section of our Chinese language website and follow the links.