It was a Sunday afternoon when I went to the Laowei law firm in Shenzhen. I hadn’t expected them to call a meeting on a Sunday afternoon as my British preconception had kicked in, that Sunday should be a day of rest, not a working day. Nevertheless, when I entered the lawyers’ office at two o’clock on that Sunday afternoon, there was already a group of workers from the Japanese-owned Li Guang factory, and lawyer Meng from the Laowei law firm, in the meeting room. The motive for these workers to come to Laowei for a discussion on a Sunday is their grievance about their dismissal from work, a controversial case concerning whether their dismissal is legal or not.
The Li Guan workers’ strike took place in November 2011. They went on strike for a simple reason: their salaries hadn’t gone up since 2002. However, their strike was not successful. Its weakness was that it wasn’t a united action. The whole factory has 4,000 workers, but the number of workers who agreed to strike was only fifty-five. In the end, the actual number of workers who were on strike was thirty-eight. It was only a half-day strike, and the manager finished the strike efficiently by firing the workers’ representatives.
Former workers from Li Guan told me that there were several reasons for the failure of their strike. First and foremost, the number of people who went on strike was too small, involving just one section of the whole factory’s workforce who decided to go on strike. More importantly, this section is not involved in production but in machinery maintenance, so even if this section stopped working, the impact on the whole factory would not be as great as if a production line went on strike. Secondly, the manager was very tactically astute in dividing the workers. The culture of a Japanese factory is that they recruit the whole family to work for them. Therefore, it’s not only the individual who works in the factory, but also his wife, his cousin, and so on; in other words, the kinship network is very strong in the Li Guan factory. When this group of workers decided to go on strike, the manager started to persuade or threaten members of their families who also worked in the factory. Thirdly, at the bottom of their hearts those workers who went on strike didn’t want to leave the factory. Most of them have worked for Li Guan for more than seven years and their families also work there, so the reason that they stopped working was purely to gain some more salary. They never thought of resigning from the factory until the moment that they received the factory’s ultimate notice of dismissal because ‘their action (strike) was illegal and causing disruption to the factory’s production’. Therefore this group of workers decided to sue the factory because the manager had ‘dismissed them from their jobs illegally’. The lawsuit started in October 2012, and until now it has been blocked by the intermediate court in Shenzhen, but those workers said: We want to pursue this case to the Supreme People’s Court!
According to the Chinese labour contract law of 2008, there is no specific regulation to define whether a strike is legal. In other words, there is a void in the legal system around workers’ strikes, not to mention the protection of workers’ representatives during a strike. Clause 39 of the labour contract law stipulates only that ‘if the employee is violating the instructions of the employer, or guilty of misconduct, or causing severe damage to the employer, the employer may dismiss the employee’ (author’s own translation; original text at http://bj.9ask.cn/hetongjiufen/hetongfaquanwen/200909/231626_4.html). Therefore the basis of the Li Guan workers’ case against their management is that asking for a salary increase is not violating the instructions of the employer. This has great implications: workers would have the right to negotiate over their wages, as in the Li Guan workers’ case, they didn’t damage any machinery in the factory, they merely stopped working as a means of negotiation. If the court found in favour of the workers in the lawsuit, it could be interpreted as meaning that the Chinese legal system recognised workers’ rights, as an equal party to their employer. This is why those workers wish to pursue their case to the Supreme court: because it might make a revolutionary change to the whole legal understanding and recognition of workers’ rights; it might introduce some fairness into the employee–employer relationship in China.
The reason that this post is only ‘part one’ is because pursuing a lawsuit to the Supreme Court takes a long time. I was very moved by the workers’ determination, and I obtained their agreement for me to post this blog to people outside China, for them to know that there is a small group of workers who are trying to use their own case to change the Chinese labour system, not only from a legal perspective, but more importantly to win wider recognition of workers’ rights. Workers told me: ‘We are not afraid that the lawsuit is time-consuming, we only want the court to give us a justified answer.’ Lawyer Meng from Laowei, who is in charge of this case, also told me: ‘There will be many failed attempts to change the labour law system, but we keep our hope, fight until the last moment!’ If they don’t give up, why should we feel despondent about the labour situation in China? I am hoping, in the future, that part two of the Li Guan workers’s blog will bring more positive news; if not, at least those workers will have tried and fought to the end!
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