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Protecting workers' representatives: A key issue in the development of collective bargaining in China
As collective bargaining begins to gain traction in China, the need to support and protect those workers who are willing to stand up and represent their colleagues in face-to-face negotiations with management has become increasingly apparent.
On numerous occasions, worker representatives have suffered reprisals after taking part in collective bargaining with management. Indeed, the Laowei Law Firm in Shenzhen, which specializes in labour rights matters, is currently handling at least half a dozen cases in which worker representatives were sacked, forced to resign by management or detained by the police.
Most notably, in April 2012, two employees at the Hengbao jewellery factory near Guangzhou were detained by local police for three weeks after representing co-workers in a dispute over the non-payment of social insurance contributions. This case illustrated not only the risks involved in taking collective action but also crucially the importance of worker solidarity in making sure such action is successful. The Hengbao workers were not intimidated by the detention of their representatives: On the contrary, they rallied around them and demanded their release. Moreover, the workers continued to push for their original demands and eventually received the social insurance payments they were entitled to.
The Hengbao case became the focus of an in-depth investigation by Collective Bargaining Research (集体谈判制度研究) translated and edited here by China Labour Bulletin. The report explains in detail the background to the dispute, the course of events that led to the detentions and the subsequent response of the workers. It also raises several questions about the protection of workers representatives and whether or not it is possible or indeed necessary to give elected workers representatives the same legal protection currently afforded to trade union officials under the Trade Union Law and Trade Union Constitution.
This is an important issue because, in the vast majority of cases, those involved in collective bargaining with management are ordinary workers and not trade union officials. Either because there is no trade union at the enterprise at all or because that union is controlled by management, workers currently have had little choice but to take action themselves.
The lack of any clearly defined legal protection for worker representatives has left them extremely vulnerable to retaliation. Many representatives are acutely aware of the fact that they are putting themselves in the firing line; indeed some fully expect to get fired and prepare to leave their employment even before taking action. This was the case with the two workers who organized the ground-breaking work stoppage at the Nanhai Honda plant in the summer of 2010, which triggered a wave of strikes across the automotive sector in southern China.
Other representatives successfully led strikes and negotiated a collective bargaining agreement with management only to suffer reprisals much later, after the workers' solidarity created by the dispute had started to dissipate. For example, worker activist Liu Ting was fired for “violating the labour disciplinary code” half a year after negotiating a deal with management at the Citizen Watch factory in Shenzhen at the end of 2011.
Under the current legal framework in China ordinary workers who have their employment unfairly terminated can, under Article 43 of the Labour Contract Law, ask the union to intervene and remedy the situation. However that is not a realistic option if like most enterprise trade unions, it is controlled by management. Trade union officials, meanwhile, are entitled to legal protection whilst carrying out their duties in promoting and defending workers' rights. If the employer takes retaliatory action against them, the officials can ask the local labour department, public security bureau and higher level local governments to remedy the situation.
For example Article 51 of Trade Union Law states that:
Any organization that, in violation of the provisions of this Law, retaliates against the functionaries of trade unions who perform their duties and functions according to law by transferring them to other posts without justifiable reasons shall be ordered by the labour department to rectify and reinstate the functionaries; if losses are caused therefrom, compensation shall be made to them.
One solution therefore would be to simply extend the legal rights currently enjoyed by enterprise trade union officials to any and all democratically elected workers' representatives engaged in collective bargaining with management. This would be a reasonable and equitable solution because the workers' representatives are in effect doing the job of trade union officials in protecting and promoting the rights and interests of the workforce.
However this would at best be a stop-gap measure because workers could never be absolutely sure that their status as democratically elected representatives will be recognised by the courts. Employers could, for example, argue that the workers did not represent the majority of employees and therefore were not entitled to protection under the law.
Perhaps a more effective and long-term solution would be for workers to set up or join their existing enterprise trade union and then take an active part in union business by standing for election and if elected vigorously defending their members' interests.
In the past, workers have been reluctant to even think about getting involved in their enterprise union because they believe the union is under the sway of management. And this in essence has become a self-fulfilling prophecy because the more the workers ignore the union, the more distant and irrelevant it becomes. The situation potentially began to change this year however following the direct election of trade union representatives at the Ohms electronics plant in Shenzhen in May. The Shenzhen Municipal Trade Union Federation subsequently announced plans to hold elections in another 163 enterprises in the city, thereby opening the door to genuine worker participation in union affairs.
For workers to take advantage of the opportunity offered by the Shenzhen federation however, they need to be convinced that it is a worthwhile and effective course of action. Most workers will take a lot of convincing that the union is something worth bothering with but the same could have been said of the legal system ten years ago.
In the early 2000s, very few workers would even think about taking their boss to court, but now, especially with the implementation of the Labour Contract Law in 2008, millions of workers have successfully brought suits against their employers in the courts and arbitration committees for violations of their rights. Workers increasingly realise that although the legal system is not a panacea, it can still be a valuable tool for them, one that is far more effective than traditional means of seeking redress such as petitioning.
Encouragingly, some workers are likewise beginning to see the value and utility of joining their enterprise trade union. The Ohms election was hopefully just the start of a longer process in which more and more ordinary labourers can begin to transform currently moribund trade unions into truly democratic and representative workers' organizations. And, of course, if they do suffer from management attacks or reprisals in this process, they will be protected by the Trade Union Law.
Ultimately, the solution lies with managements treating workers' representatives as equals and engaging in respectful and constructive dialogue with them over pay and conditions but until that stage is reached, workers will need protection from both the law and a fully functioning trade union. However, as recent evidence shows, workers will not wait for such protection to be handed to them: They will continue to take collective action and bargain with management to get a better deal regardless. As such, it is surely in the interests of the government and the business community to give the workers the tools they need to bargain effectively and thereby ensure stable labour relations.
Collective Bargaining Research's investigation into the detention of worker representatives at the Hengbao factory is available as downloadable PDF.