Han Dongfang, CLB Director

First published in International Union Rights

Volume 11 Issue 4 2004

CHINA Labour Bulletin has been trying over the past couple of years to explore ways in which we can help Chinese workers to begin reclaiming the ACFTU from below. Raising the slogan "It's our union and we want it back," we have begun to develop several new initiatives in this direction. The most important of these is that Chinese workers should begin using the right accorded to them under the PRC Trade Union Law – as affirmed by the ACFTU at its last annual congress – to create, through a process of democratic election, trade union branches in factories and enterprises where none currently exist. The law requires that they then register such union branches with the ACFTU – but while certainly problematic, this of itself need not be an insuperable obstacle to real union work and activity.

The key, as we see it, is to target factories and enterprises where the workers are already engaged in some form of struggle with management – whether over unpaid wages (workers are currently owed tens of billions of US dollars), over unfair and exploitative contracts (or no contracts at all: another widespread complaint), or over official corruption in the SOE 'restructuring' process (in the third and final stage of SOE reform up to 190,000 factories will be privatised or made bankrupt, threatening tens of millions of workers.) Over the past two years, China Labour Bulletin's main aim has been to get actively involved in Chinese workers' struggles like these.

We began with individual workers' cases. In one such case, involving a rural couple whose son had died from an occupational illness contracted while working in a Japanese-invested stone-milling factory, we hired a lawyer to help the couple sue the factory for compensation – so far unsuccessfully, but we managed to get one of China's main legal affairs magazines to run a long feature article on the case. We'll be using this article to publicise the case in Japan, with the help of the Japanese trade unions, in an effort to put pressure on the owner company to settle the bereaved parents' compensation claim.

From there we moved on to tackling collective workers' dispute cases – for example, the case of the Suizhou City Tieshu Textiles Factory, where several thousand workers had been protesting for over a year against a bankruptcy arrangement that left them without any redundancy money or pension entitlements. In February this year, the workers staged a mass blockade of the local railway line for several hours and around ten of them were then arrested and charged with disturbing public order. China Labour Bulletin decided that, as a concrete act of labour solidarity, we would find and pay for criminal defence lawyers to represent them in court. We secured the services of a top law firm in Beijing, and the effect was salutary: within days of the lawyers' arrival in Suizhou, the local police had released and dropped charges against most of the detained workers. Instead of the several-year sentences they could otherwise have expected, in the event only one of the workers received a one year prison sentence. We then refocused the case back on to the workers' original demands, by helping them mount a collective civil lawsuit against the local Bureau of Labour for failing to ensure that the factory had paid the workers' pension contributions as required by law.

In another recent collective case that China Labour Bulletin has worked closely on, in April this year ten young workers from shoe factories owned by the Taiwan company Stella International were arrested and charged with 'assembling a crowd to disturb public order,' following mass protests over low pay, excessive overtime hours and poor canteen food the company's Xing Ang and Xing Xiong factories in Dongguan City in southern China. The protests had turned rowdy, and some US$150,000 worth of company property was allegedly damaged and some managers assaulted. Although this was not a clean-cut freedom of association case, we decided to take it on because it nonetheless typified the kinds of problems facing Chinese workers in the private sector today: when no proper channels of complaint or grievance resolution are provided (let alone an actual union), tensions among workers often build to uncontrollable levels. And again, the detained workers deserved the best legal defence that could be found. In the event, another top law firm in Beijing agreed to defend six of the workers (we were unable to contact the families of the other four) – and much to our surprise, on a pro bono basis. In their defence statements to the court, the lawyers were able to demonstrate that the prosecution had produced no actual evidence linking any of the six defendants to any acts of violence or other criminal wrongdoing. Even more important, they turned the focus of the case back on to the workers' original grievances, in effect putting Stella International firmly in the dock instead of the workers. To this extent, the court case against the Stella Ten was a milestone event in modern China's legal and labour movement history. To our knowledge, pro-worker and union rights' sentiments like the following, spoken by the defence lawyer Gao Zhisheng, have never before been expressed in a Chinese court of law:

"Having an effective institutional channel of communication between workers and company is the basic systematic safeguard and guarantee for stable labour relations, for safety in the workplace, and also for peace and stability in society as a whole. In China, however, this fact has been openly neglected and disregarded throughout the past half-century and more. The Xing Ang Shoe Factory is a large enterprise employing several thousand workers, but it does not even have a trade union branch (in China, of course, there is little difference in terms of workers’ rights protection whether or not a trade union organisation is present.) Meanwhile, the almost complete scarcity of any judicial protections for workers' rights and interests leaves Chinese workers without any defence against the predations of their employers, such that so long as they have a breath left in their bodies they will endure almost any indignity and injustice, simply to survive. The pathological greed for profits on the part of the factory owners, together with the absolute protection afforded to corrupt capitalists by our judicial system – these, and these alone, are the real main reasons why this [protest] incident erupted in the first place."

So while continuing to pursue our original Case Intervention strategy, in certain promising cases China Labour Bulletin is now adding on a factory-level union organising component as well – both as a way of promoting the workers' existing demands and as a way of creating a long-term organisational means of safeguarding their rights in the future. As we see it, there is a world of difference between a union branch set up by workers who are already engaged in workplace struggles and campaigns such as these, and which is consciously and democratically formed for the purpose of opening collective bargaining with management over the specific issues concerned, and a situation whereby the ACFTU parachutes into a factory a local official or two and imposes a union branch on the passive workforce, simply in order to boost its statistics on the rate of local unionisation in the private sector. In the former, the workers have a direct motivation and reason to create their own union and hence will have a sense of genuine ownership over it. They will also be much more psychologically ready and prepared to defend it against subsequent (and probably inevitable) efforts by the ACFTU to reassert hierarchical controls and conformity with the Party line. In the latter situation, the workers will at best remain, as is now generally the case, quite indifferent towards the new union presence. If enough Chinese workers in enough factories can be persuaded to try this approach, the ACFTU could – over an undoubtedly long period of time – begin to assume a significantly different overall character and role than its present one of acting as the Party’s enforcer of labour discipline.

A couple of key points, however, need to be emphasised here. First, it is one thing to support and encourage Chinese workers themselves to gradually repossess the ACFTU, and quite another thing to be calling for the international labour movement to "constructively engage" with the ACFTU at senior levels. The one by no means follows from the other – and still less does the former serve to validate or endorse the latter. Indeed, to the extent that this new strategy begins to succeed, trades unionists elsewhere in the world will finally discover that there are valid alternative partner groups of workers in China with whom they can pursue meaningful union-tounion contacts – over issues ranging from health and safety to workers' education and grassroots' organising work. To be sure, thanks to the continuing legal ban on genuine trade union organising in China, the ACFTU will still be "the only game in town." But talking to worker representatives from democratically elected grassroots branches would clearly be a far more attractive and effective way of demonstrating international labour solidarity than talking to government-appointed officials at ACFTU headquarters.

Second, necessity has very much been the mother of invention in this new strategy of repossessing the ACFTU from below. On the one hand, mainland Chinese law criminalises and harshly suppresses any attempts at independent union organising, and China Labour Bulletin has long since recognised that the 'underground organising' route is completely unviable, at least for the foreseeable future in China. The personal cost – of arrest and long-term imprisonment – is simply too high for Chinese worker activists and their families to be willing or able to pay, nor should the international labour movement expect them to do so. On the other hand, China's own Trade Union Law contains, on the face of it at least, a very wide range of legal protections for workers who seek to organise strictly within the confines of the ACFTU. They are legally guaranteed, for example, an extension of their existing labour contract to cover their entire period as a union office-holder; they cannot be sacked, except if the employer pays them two whole years' worth of salary as compensation; and the law also expressly forbids any individual or organisation from seeking to prevent or obstruct workers from organising trade union branches at the factory level. Couple all this with the ACFTU's own stated drive to greatly increase the extent of unionisation within the private sector over the coming years – witness its recent head-to-head conflict with Wal-Mart over the retail giant's refusal to allow ACFTU branches to be created in its China factories and stores – and take into consideration the Guangdong regulations which specifically permit 10 or more individual workers to initiate the process of establishing a union branch in workplaces that don't have one – and you surely have a situation that is crying out to be exploited by genuine worker activists.

Even given all these emerging new opportunities and potential organising space, it would be naïve to expect that the Chinese authorities – including the leadership of the ACFTU – will not seek to restrict and curtail the kind of bottom upwards strategy of 'union repossession' by genuine worker activists outlined above. The arrest in early November 2004 of more than twenty workers who had helped organise an unprecedented, seven-week-long strike by almost 7,000 textile workers in the north-central Chinese city of Xianyang, and who were in the process of trying to organise union elections in all eight of the factory's different workshops just prior to the police crackdown that ended their magnificent strike action, is a clear case in point. And it's in cases like these, above all, that the international labour movement should seek to demonstrate the principle of labour solidarity with Chinese workers, by giving its full support to the grassroots democratic union-organising movement; by providing both moral and financial assistance to the families of workers who get arrested simply for trying to put into practice the Trade Union Law's provisions on founding factory-level unions through direct elections; and by making sure they don't undercut these grassroots efforts by holding ill-advised summit meetings with the ACFTU leadership that can turn into photo opportunities for the Chinese government. It's our union. And we will take it back.

4 January 2005