Editor's Note: In mid-March this year, the largest
federation of trade unions in the United States - the American
Federation of Labor and Congress of Industrial Organization
(AFL-CIO) - submitted a petition to the Bush administration,
calling for trade sanctions against China under Section 301 of the
Trade Act of 1974. It claimed that China's repression of workers'
rights amounted to an unfair trade practice. The petition won the
strongest support from Bush's election rival, Democratic Senator
John Kerry. On April 28, the Bush administration turned down the
petition, saying "Accepting these petitions would take us down the
path of economic isolationism." Of course, the decision of the Bush
administration became a target of criticism, particularly from the
Kerry camp.
In this three-part series, we put aside protectionism and
election-year politics to take a look at the actual labor situation
in China. Is the nation "systemically abusing" its workers? Dr. Li
Jianfei, deputy director of the Labor and Social Security Law
Institute of Renmin University, discusses the laws that China has
enacted to protect workers and their interests, and how those laws
are being implemented.
Protection of workers' rights has long been a matter of great
concern to the Chinese authorities. To this end, a series of laws
and regulations have been enacted that clearly define the rights of
workers. These rights are also acknowledged in the provisions of
Articles 44 through to 46 of the Constitution, which have the
highest legal binding force.
Right to work. People have the right to be
employed on an equal footing and to choose among occupations in
order to obtain remuneration.
Article 42 of the Constitution says, "Citizens of the People's
Republic of China have the right as well as the duty to work." This
basic principle was put into detailed effect in the Labor Law,
which states that workers have the right to equality in employment,
the right to choose their own careers, the right not be dismissed
unlawfully and arbitrarily, and the right to unemployment
registration. The enforcement of these rights is set out in Article
5 of the 1995 Labor Law, which says, "The state shall take various
measures to promote employment."
The law also provides that workers shall not be discriminated
against in employment, regardless of their ethnicity, race, sex or
religious belief. It also states that all workers have the right to
petition for protection when their right to employment is
violated.
Right to social insurance and welfare. Article
45 of the Constitution states, "Citizens of the People's Republic
of China have the right to material assistance from the state and
society when they are old, ill or disabled." Chapter 9 of the Labor
Law delineates China's social insurance and welfare system.
Article 70 of the Labor Law says, "The state shall develop
social insurance undertakings, establish a social insurance system,
and set up social insurance funds so that workers may receive
assistance and compensation under such circumstances as old age,
illness, work-related injury, unemployment and child-bearing."
Article 73 says, "Workers shall, in accordance with the law, enjoy
social insurance benefits under the following circumstances: (1)
retirement; (2) illness or injury; (3) disability caused by
work-related injury or occupational disease; (4) unemployment; and
(5) child-bearing. The survivors of the insured workers shall be
entitled to subsidies for survivors in accordance with the law."
The Labor Law also regulates the standards of social insurance, the
source of social insurance funds and supervision of their use, as
well as levels of social insurance. The aim is to safeguard the
operation of the social insurance system and guarantee workers'
rights to receive benefits.
All workers are equal in enjoying and receiving all kinds of
insurance and welfare. No special privileges are allowed.
Workers are entitled to receive payments under such
circumstances as retirement, work-related injury or illness and
related treatment, unemployment, and maternity leave and related
care.
The right to rest includes sick leave for a worker who is ill or
injured, whether or not the injury or illness is work-related. It
also includes maternity leave.
Workers also have the right to request the establishment of
public welfare facilities that create conditions for rest and
recuperation.
Right to apply for assistance in settling labor
disputes. According to Article 3 of the Labor Law,
employees have the right to request the appropriate organizations
to assist in resolving disputes with employers.
When workers apply for assistance, they may freely choose the
means. Article 77 of the Labor Law says, "Where a labor dispute
between the employer and workers exists, the parties concerned may
apply for mediation or arbitration or take legal action in
accordance with the law, or may seek a settlement through
consultation."
The right to request labor dispute settlement bodies to hear
cases is the essence and core of the right. If workers'
applications for labor dispute settlement are refused, they have
the right to request and receive an explanation from the settlement
body.
When workers appeal to labor dispute settlement bodies to
protect legitimate rights and interests that have been violated and
the bodies deal with the cases in an illegal way, the workers have
the right to file legal action against the offending body. Article
88 of the Labor Law says, "All organizations or individuals shall
have the right to expose and accuse any act in violation of laws,
rules and regulations on labor."
The number of labor dispute cases rose sharply in 2003 as
workers' awareness of their ability to protect their own rights
grew.
During the year, labor dispute arbitration committees at various
levels accepted 226,000 cases, a year-on-year increase of 22.8
percent, involving 800,000 employees, a 31.7 percent rise. Some
11,000 of the cases were collective disputes, according to the
Ministry of Labor and Social Security (MOLSS) and the National
Bureau of Statistics.
In the past, almost all plaintiffs in labor lawsuits were
blue-collar workers, but an increasing number of white-collar
employees and even executives have begun to file complaints against
their employers.
Substantial progress was made in the creation and enforcement of
labor laws and regulations in 2003.
The State Council, China's cabinet, published the Regulations on
Industrial Injuries on April 1, 2003, while the MOLSS promulgated a
number of labor and social security regulations covering industrial
injury insurance, minimum wage and collective labor contracts.
Local labor authorities put in place 28 regional labor
regulations.
In 2003, labor and social security authorities stepped up
efforts to curtail violations of labor laws and regulations.
Special inspections were launched to safeguard the rights of
vulnerable groups such as migrant workers.
By the end of 2003, 3,223 labor and social security supervision
offices were registered nationwide, employing 19,000 full-time
supervisors and 24,000 part-time ones.
These authorities inspected more than 1.1 million employers,
investigated 264,000 alleged labor rights violations and accepted
another 166,000 cases reported by citizens. They conducted 1.2
million regular annual inspections of employers.
For the workers, those inspections paid off. During the year,
labor authorities ordered employers to pay 3.7 billion yuan (US$500
million) in defaulted social security insurance funds and 2.7
billion yuan (US$327 million) in back wages. Moreover, they urged
88,000 employers to register for social security insurance and
ordered them to sign employment contracts with nearly 9.0 million
employees. They retrieved 120 million yuan (US$14.5 million) in
illegally collected risk guaranty money for employees and took
action against 6,585 illegal job agencies.
Li Jianfei, JD, is an associate professor at the Renmin
University of China, deputy director of the university's Labor and
Social Security Law Research Institute, and former vice director of
the Laws and Regulations Department of the Chinese Labor
Ministry.
(China.org.cn, People's Daily and Hangzhou
Daily contributed to this report, June 17, 2004)