Fuk-Yin presented at the activist panel in our September workshop, she was a policy and
education officer at Worker Empowerment (WE), a Hong Kong-based labour
organisation working on Chinese labour issues, from 2012 to 2014. She was
responsible for writing up labour education materials, conducting action
researches and supporting policy advocacy campaigns in Guangdong, mainly
Shenzhen and Huizhou. Before
working at WE, Fuk Ying obtained her bachelor and master’s degrees (in 2006 and
2009 respectively) from the Department of Government and Public Administration,
the Chinese University of Hong Kong, She will begin her doctoral studies at
Warwick Business School from September 2014.
Following is the gust blog from Fuk-Yin Tse.
The enforcement of the Labour Contract Law of
China and its amendment in 2008 and 2013 respectively are regarded as attempts
of the state to regulate employment relationships. By introducing the concept
of labour contract, in which working conditions and terms are clearly defined on
paper, both workers and employers are able to negotiate on their contract terms
on equal grounds. In general, a labour contract is vitally important in
specifying “who doing what, when, how and what for” in the workplace, offering
workers protection at work and exit mechanism without being exploited.
While working for a Hong Kong-based labour organisation
in the past two years, I examined how the Labour Contract Law has been
implemented among factory workers in the manufacturing sector. Annual
investigations, mostly around our major project site in Shenzhen, are conducted
since 2008. The latest one, covering eight cities in the Pearl and Yangtze
River Deltas, was conducted in early 2014 with the assistance of local labour
organisations and university students.
In the past decade when we worked in southern
China and provided workers with free legal consultation services, it was found that countless labour disputes, ranging from occupational
injuries, wage in arrears and other sorts of workplace mismanagement, resulted
from the lack of regulation of how “work” should be like and confined to – under
what terms workers are promised in exchange of their labour power in the
production process; how employers should be held responsible in cases of
disputes; and also how workers can negotiate on favourable terms and guarantee
themselves a safe, equal and just workplace instead of simply following what is
offered to them according to interests of the employers.
We do recognise the rationale of the Labour
Contract Law, but its enforcement is always unsatisfactory. The findings of our
past surveys support our observation, especially in the following commonly
occurred aspects:
Rough Contracts
First, workers tend to get into poorly defined
employment relationships and sign rough contracts. Of course more labour
contracts are signed year by year, but probably only in big coastal cities. Contracts
are often roughly drafted, and the ambiguity of the labour contracts makes it
easier for employers to manipulate working patterns and remuneration for
workers. For example, working overtime and keeping the basic wage a relatively
small proportion of the total wage are still very common. Many interviewed workers
are also not informed of the potential risks and hazards of their work.
Rough contracts or having no contracts at all hinder
workers from getting their legally abided compensation in case labour disputes,
such as occupational injury, outstanding social security payment and illegal
layoff, occur. By refusing to recognise that the employment relationship
actually exists in a certain period of time, employers are often not held
responsible for the loss of workers. Workers often have to pay extra effort to
provide proof of employment, which consume tremendous amount of time and effort.
Local authorities and judiciary also tend to make decision in favour of
employers, depending on the industrial development in the region and vested
interests of the local government.
Low Job Security
Second, a labour contract does not necessarily
guarantee job security. In theory, workers should be compensated according to
seniority if the employer refuses to renew a contract with them, or wants to
terminate a contract. The terms and conditions of a renewed contract should
always be better than the old one. Once signing 3 contracts with the same
employer consecutively, workers can request for signing a contract of
indefinite period of time, meaning that they are regarded as permanent workers
of the enterprise.
However, very few interviewed workers are able to
have a labour contract of indefinite time. The effect of
short contracts on workers’ welfare can be seen in the week-long strike of street cleaners in the Guangzhou University Town
in late August 2014. When their contracts change, their seniority has to be counted
all over again even if they always work in the same position.
We also see strategies used by employers to evade
from compensating workers for terminating a labour contract unilaterally (aka
laying off). Since compensation to workers does not apply to resignation, employers cut working hours of workers
deliberately, so that workers cannot stand the sharp decrease of income every
month and then resign by themselves. In relocation of factories, workers were
often made to resign since they did not want to relocate to a new city.
Notorious Labour Dispatch
For dispatched workers, the story is even more
complicated. The use of dispatched workers was actually boosted by the Labour
Contract Law in 2008, which granted labour dispatch an official status. In the
Law dispatch workers are only allowed for temporary, auxiliary and substitutive
positions, but from our survey, quite a number of workers revealed an
indiscriminate use of labour dispatch in their enterprise.
Labour dispatch is problematic in certain ways.
First, the employment relationship becomes ambiguous. In principle workers sign
a contract with a dispatch agency, but it is the enterprise which fulfils all
functions of an employer – giving production orders, paying wages, paying for social
security, providing training and occupational safety measures etc. Yet when
disputes arise, the enterprise and dispatch agency tend to blame each other,
leaving workers in difficult circumstances. Some dispatch agencies are really
small units or even affiliates of the enterprise de facto, so no one might eventually
take up responsibilities. Second, dispatched workers often have lower pay and
welfare provisions than formal workers, which is supposedly not allowed by the
Labour Contract Law.
The 2013 amendment of the Law attempts to impose
tighter control of labour dispatch by introducing a ceiling to the proportion
of dispatched workers that an enterprise can employ, stricter registration
requirement for dispatch agencies etc. The effect is yet to be examined, since
it is just barely a year after the amendment of the Law and provision on labour
dispatch came into effect, and a two-year transition is allowed for
enterprises. Nevertheless, what we can see is that when labour dispatch no
longer works, enterprises opt for other forms of flexible employment, such as temporary
work and outsourcing, which are out of the existing legal framework and even
more difficult to regulate.
Who Should be Blamed for the
Malpractice of the Law?
We consider the ineffective implementation of the
Labour Contract Law largely the fault of the state, for it putting very little
effort in law enforcement and very low cost for employers to expediently break
the law. After years of struggle in the coastal area, we see that the situation
might have improved, but it has hardly been demonstrative to inland areas,
where industries and labour power are relocated to. It might be due to the lack
of exposure and vision of local government and judiciary in handling such
disputes, and also, even worse, a closer connection between capitalists and
local governments.
Since most interviewed workers who have prior
knowledge on the Labour Contract Law learn about that from personal networks,
it shows that the role of the state in promoting the Law among workers is very
limited. We reckoned that labour
department and trade union of different levels should play more proactive roles
in increasing the awareness of workers to understand their own rights.
Harder
penalties for employers violating the Law should definitely be imposed.
Nevertheless, we believe that workers should
always be the agent of change against exploitation and for better working
conditions. Therefore, besides educating workers on the Law, rooms for workers to organise
and negotiate with their employers on equal grounds should also be opened,
especially in the form of establishing collective contracts with their employer
on an independent basis, so as to realise the rationale of the Labour Contract
Law and scrutinise its practice right in the workplace.
A full version of the 2014 Labour Contract Law survey in
Chinese with an English abstract is available here:
http://www.workerempowerment.org/en/files/Labour-Contract-Law_WE_2014-7.pdf
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