By Michael Zhang
Delegates to the fourth plenary session of the 10th National People's Congress, which closed in Beijing on 14 March, have proposed drafting new legislation to protect the rights of rural migrant workers. This legislation, first proposed in the first session of this 10th congress in 2003, has reappeared at every congress since. It seems that the delegates to the NPC and the central government have different ideas about the need for this law.
We have studied the proposals for this law on the protection of rural migrant workers' rights and find that the central demands are the protection of the equality of rural migrant workers and the elimination of all kinds of discrimination directed at the rural migrants, so that these workers will enjoy equality in all the rights afforded them by the constitution and other laws of the country. The proposal is aimed at the employment issues that rural migrant workers in China are currently facing in urban areas: The proposed legislation would codify and clarify rural migrant workers' rights to equal employment opportunities; the right to compensation for work; the right to rest periods and holidays; the right to enjoy social security compensation and other labour rights.
We believe that the current constitution and the Labour Law as well as regulations issued by the Ministry of Labour and Social Security have already clearly explained the concept of the 'worker.' The legal concept of the 'worker' makes no distinction between an urban worker and a rural migrant worker. The part of the Labour Law which might be amended is that to do with labour relationships between the owner (also referred to as the employers of labour, yong gong dan wei; or gu zhu) and the workers and here the term "rural migrant worker" should be added as one of the actors which may be a party to a labour relationship.
Neither the concept of rural migrant worker nor naturally the problems of the lack of treatment and protection of the rights of this group exists in the law. If the rights of rural migrant workers are given special treatment under the law, it will exclude them by defining them as something other than urban workers or another group of workers and strengthen the current view held by those in urban areas that this is a special social group that has been discriminated against.
We also believe that all of the rights stated above are embodied in the relevant articles of China's current constitution, the Labour Law and the Trade Union Law. The reasons why rural migrant workers are forced to take jobs where the pay is low, the work is extremely strenuous and there is no occupational health and safety protection, or in seek employment where they have no certainty of getting their pay even after 12 months on the job, or take positions which do not provide them with legally mandated social security is due to the continuation of the household registration system (hukou zhidu) for the past 50 years or more. It is also due to policies undertaken by local governments which discriminate against rural migrant workers who seek employment in their towns and cities and to the ineffective policy implementation by local government departments.
Therefore, the protection of the rights of rural migrant workers is not a question of the law but of the administration of the law. If we consider some regional laws and regulations issued by provincial governments on the protection of rural migrant workers rights, we discover that these articles are nothing more than a repeat of the content of the constitution and the Labour Law. And some rights which require clarification and detailed regulations have long been put forth in the administrative regulations and articles issued by the Ministry of Labour and Social Security.
For a long time, academia has identified the existence of a dual labour market in China. The more than 100 million rural migrant workers who upon entering the towns and cities were directed to the 'second class labour market' of strenuous, low wage jobs with few, if any, additional social security benefits and prevented by the system from entering the other labour market of high paying jobs required little physical labour and offering a full complement of social security benefits. In recent years, governments at all levels have been trying to break down the barriers which created this "dual labour market." However, the employment opportunities for rural migrant workers have not improved much. The media has frequently reported the many instances of the violation of their rights. The reason for the lack of progress must lie with a 'discriminatory application of the law' as regards protection of the rights of rural migrant workers. This kind of discrimination appears when rural migrant workers' rights have been violated, when, for example, those in the construction industry try to claim a year's back wages. Unpaid and destitute, they not only do not have the resources to sue their employers but end up living on the street. This kind of discrimination of migrant workers has also been seen again and again in the cases of silicosis sufferers in the jewellery processing industry in Guangdong province seeking compensation for their work-related illness. (See "Deadly Dust") Discriminatory application of the law will not disappear with the drafting of new laws or the resurrecting of the existing ones.
The National People's Congress is the highest lawmaking body in the country. The charter of this institution gives it both legislation and administrative functions. Shi Weimin of the Chinese Academy of Social Sciences said, "Almost all the mayors of the more than 300 cities in the country are delegates to the NPC." On the other hand, of the 2,985 delegates to the 10th NPC, only 551 of them are representatives of the workers and the farmers. Officials from the various branches of the government hold 968 seats, accounting for about one-third of all delegates. In their participation in lawmaking activities, they also take on the responsibility of managing the administration bodies at all levels. Thus, when we talk about the problem of "discriminatory application of the law" in China today, these men are mainly responsible. Whether rural migrant workers are to gain protection of their labour rights will be determined by whether these administrators of the law in the NPC are in fact able to carry out the laws that they themselves have voted into being.
21 March 2006