However, as CLB Director Han Dongfang points out, all is not lost: “The Labour Contract Law has not gone away, it is still on the statute books, and the workers know it is there if they need it. What’s more, they have seen this year just how effective strike action can be. Now that they have got a taste for it, they are not just going to let it go again.”
There is always a danger that the authorities in some areas will crackdown on strikes and protests this year, and harass and detain workers’ leaders, as was the case this month when over a 1,000 migrant workers demanding their wages reportedly clashed with around 500 police in Wuhu, Anhui. However, it seems that the primary focus of the government now is the early detection and resolution of labour disputes through mediation and consultation before they escalate into public protest. And even when early detection fails and strikes have erupted, as in the case of the taxi driver strikes that swept the country last year, local governments have shown increasing willingness to negotiate with workers and seek to address their grievances. That said, many local governments have also made it clear they will not tolerate protests that disrupt public order or jeopardize production.
The Chinese government, from Zhongnanhai right down to the local labour bureau, has a very difficult balancing act to perform this year; the immediate priority is the economy but the long-term goal of creating a “harmonious society” remains intact. And the government’s task will be further complicated this year by several highly sensitive anniversaries, such as the 20th anniversary of the Beijing Massacre on 4 June, and the 60th anniversary of the founding of the People’s Republic on 1 October. Given the magnitude and complexity of the problem, it is not surprising that the government’s response thus far has been confusing and sometimes contradictory. President Hu Jintao, on 13 January, called on the Communist Party to strengthen its crackdown on corruption during the economic crisis, while the Guangdong provincial procuratorate instructed its officers not to arrest or detain factory bosses and other senior staff suspected of white collar crime. However, it did indicate that workers, whose protests were deemed to jeopardize factory production, would be arrested. In Fujian, the authorities established a special labour dispute court to protect the rights and interests of migrant workers, which has already seized the assets and frozen accounts of companies that have defaulted on wage payments to their workers – precisely the measures Guangdong is urging its prosecutors not to employ.
In Shandong, government officials have reportedly told factory owners that as long as they do not lay-off large numbers of employees, the government would ignore other labour rights violations. The Shandong approach is the most likely to prevail. In terms of labour rights, protecting existing jobs is now the number one priority, and several local and provincial governments have already instructed enterprises that the authorities must be informed before any mass-layoffs, so that appropriate measures can be taken to ease potential unrest.
Senior government advisor Chen Quansheng stated on 5 January that some 670,000 small businesses had been forced to close in 2008, and that the total number of layoffs for the year exceeded the official government estimate of 8.3 million. In China’s manufacturing heartland, Guangdong, 15,661 enterprises closed in the first 10 months of 2008, with over half, about 8,500, shutting up shop in October alone. The Chinese Academy of Social Sciences estimates that the urban unemployment rate is already 9.4 percent (double the official figure) and could increase to 11 percent in the New Year. Moreover, the unemployment figures do not take into account those migrants who have returned to their home towns and villages and not registered as unemployed. The Communist Party’s political magazine Outlook (Liaowang瞭望) in January issued a stark warning on the social consequences of the economic slowdown and unemployment. “Without doubt, now we’re entering a peak period for mass incidents,” a senior Xinhua reporter, Huang Huo, told the magazine. “In 2009, Chinese society may face even more conflicts and clashes that will further test the abilities of the Party and government at all levels.”
In late December 2008, the Office of the State Council issued a notice outlining practical measures to be taken to aid migrant workers during the economic crisis. Number One on the list was “adopt a wide range of measures to promote migrant worker employment.” The notice urged local governments to establish mechanisms, such wage arrears contingency funds, to guarantee the prompt payment of wages. Many cities such as Dongguan and Shenzhen have already established such funds but they have only been able to provide temporary relief at best to laid-off workers. The notice focused more on the need for local governments in migrants’ home provinces to provide assistance. It stressed the retraining and vocational education of migrant workers, helping them set up their own businesses and encouraging investment in new rural construction projects. It emphasized that returning migrants should be entitled to social security, that their children should have free and unfettered access to local education, and that their existing rural land-rights should be protected.
Very little has been said however about rigorously enforcing existing labour laws and regulations as means of protecting workers rights. Indeed, even before the economic crisis, employers were routinely getting away with a wide range of violations of the Labour Contract Law. A survey by the Dagongzhe Migrant Workers Centre in Shenzhen (translated by Worker Empowerment) records how unscrupulous employers would provide workers with contracts in English rather than Chinese, force them to sign two separate contracts or contracts with two different company seals, or use other devious “tricks” to get around the provisions of the law. Subsequent to the law’s implementation, employers raised dormitory and food costs and increased penalties for turning up to work late and other violations of company rules. The survey showed that 26.6 percent of workers still did not have a contract, and that 28 percent of contracts offered wages lower than the legal minimum. Nearly two thirds of workers said they had to work longer than the hours stated in their contract.
Before the economic crisis deepened last year, several senior trade union officials openly talked about forcefully defending labour rights and resolving labour disputes through collective bargaining. Now, however, the ACFTU seems to have temporarily abandoned plans to encourage and develop collective bargaining. In November, the Southern Daily quoted the vice-chairman of the Guangdong Federation, Kong Xianghong, as saying: “Since most companies are having a tough time at present, we will temporarily stop collective bargaining. It will be resumed depending on the economic situation.”
As CLB shows in its recently published Chinese language report, Who is the protector, and who the protected: A discussion of the politicisation of the ACFTUs’ rights protection activities, and ways out of the impasse for the union movement in China, in times of national political or economic crisis, the ACFTU will always put workers’ interests on the back burner, seek to faithfully implement government policy, and ensure as much as possible continued economic development and social harmony. Indeed, as an adjunct to the government’s nine billion yuan New Year’s aid package for the 74 million Chinese living below the poverty line, the immediate focus of the union now, according to senior ACFTU official Li Shouzhen, is to coordinate with local labour and public security bureaus in a bid to ensure that migrant workers are paid wages in arrears before they head back home for the holidays. This typifies the ACFTU’s traditional approach to workers rights, providing assistance for workers in times of need but not giving them the tools they need on a day-to-day basis, genuinely representative unions and collective bargaining, to defend their own rights and interests in the workplace.
Despite these temporary set backs, there is still hope and opportunity for workers and the trade union in the Year of the Ox. As Han Dongfang notes: “The long-term trend is clear. The only way the government can prevent greater social conflict is by giving more power to the workers not less. If workers have the right to negotiate as equals with the boss the chances of disputes turning violent will be greatly reduced. If on the other hand, the government ignores workers’ rights and gives the boss free rein, the consequences will be very serious.”
In the Han Dynasty, the emperors dispatched officials to collect popular songs from all over the country so as to gauge the popular mood in the provinces. Today, the authorities scrutinize the internet to find out what people are thinking. As such they will almost certainly be aware of Migrant Workers’ Blood and Sweat - Demanding back pay, a song composed and performed by Xiao Chao that perfectly articulates the frustration and anger of migrant workers whose boss has run off with their wages.
I needed to wait for my hen to lay eggs in exchange for cigarettes
I worked very hard in the construction site
and earned six thousand yuan within a year
I was waiting for the pay and planned to spend the Spring Festival with my family
However, the boss said he was out of money and let me wait
After the third snow, the boss still didn’t pay me
He said he had no money to pay but he spent several thousand yuan to play Mahjong
He said he had no money to pay but he spent ten thousand yuan to get his mistress a new cell phone
People in the labor department were very warmhearted and they kept calling the boss until he powered off the cell phone
The boss said he was very angry because we sued him and he even threatened us
The Labor Department let me report it to the court
The court said it would process the case for us after New Year
We waited till then and the court did process the case
But the boss had run away with our wages
He said he had no money to pay but he spent several thousand yuan to play Mahjong
He said he had no money to pay but he spent ten thousand yuan to get his second mistress a necklace.