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Protecting Workers Through Legislation (Part 1)

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)

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