Some recommendations on the amendments to the Law on the Protection of Women's Rights and Interests

On 28 August 2005, the Standing Committee of the National People's Congress passed an amendment to the Law on the Protection of Women's Rights and Interests. The new law, which comes into force on 1 December 2005, states that gender equality is one of China's basic national policies (Article 2). Observers may think that the amendment, introduced by a party that has been in existence for 84 years and in power for 56, is rather belated. Although the communist government created slogans such as "Personal Autonomy for Marriage and Gender Equality" as early ago as the 1950s in an effort to recruit more female supporters, the Communist Party never enacted any concrete legislation to protect women's rights in other spheres once it had consolidated its rule. Gender inequality worsened after China launched its programme of economic reform in late 1970s as women workers' rights were brutally violated in the new market-oriented society and competitive labour market. In light of this, the new amendments in the Law on the Protection of Women's Rights and Interests are to be welcomed as a well-meaning attempt to protect women's rights. In particular, one section of the law – Chapter Four – highlights labour and social security rights, covering women's rights to work, salaries, promotion, working conditions and social security. However, although the regulations have many good points in theory, we believe that there will be some problems in using them in practice. There needs to be more legislative and judicial interpretations and an effective mechanism for dealing with complaints. The following are our recommendations for the new law:

Women's right to work

Female workers in state-owned enterprises (SOEs) were the first victims of the massive lay-offs in the 1990s. The textile industry was one of the first to be affected by structural changes, which led to several million textile workers being made redundant. Since most factories primarily employed female workers, women bore the brunt of these lay-offs. State-owned enterprises then introduced official policies aimed at increasing efficiency by cutting the number of staff members which led to waves of large-scale redundancies across the country. Women workers were often the first to be dismissed or retrenched and it was not uncommon to find women under the age of 30 being enrolled in "internal early retirement" programmes. According to Chinese law, these workers would continue to enjoy the company's basic benefits and receive a small amount of money similar to welfare payments. According to official figures, 62.8% of retrenched and unemployed workers were women. In some parts of China, women made up between 70% and 80% of the total numbers of unemployed. At the same time, women made up only 23% of the number of employees that were redeployed. They lost their jobs for a variety of reasons. Officials sometimes said that the enterprises were loss-making or that the enterprises wanted to ensure that they saved jobs for younger people and for members of the women workers' families.  Suddenly, it appeared that the public had reached a "consensus" that dismissing male workers would affect social stability and create family problems. Many people seemed to think that it would be "impossible" for a man to live without his career, but that a woman without a job could always become a housewife. These kinds of beliefs ignore the sense of loss a woman can feel if she loses her job and the benefits that getting a job can bring to a woman's social status and self-esteem. If we look at the dismissal of these SOE workers as a process of marginalization, then the dismissal of female workers places them in an even worse position than their male counterparts find themselves in. Once they lose their jobs, it becomes almost impossible for them to return to the labour market. Article 22 of the amended law now states that women and men have the same right to work and to social security benefits. Article 27 says that employers must not discriminate against women when they implement the national retirement system. In other words, companies must scrap policies that allow them to dismiss women workers first. Anyone who violates this new law must be held responsible under it. We must wait and see whether this newly amended law will protect female workers' rights to work in practice.

Discriminatory recruitment practices

Since economic reform began in 1978, job adverts, job hunting, interviews, and employment contracts have become more and more common in the Chinese labour market. But discrimination against female applicants has become an integral part of the job market. Readers browsing the job section of a newspaper, for example, often find that being  "unmarried women" is a common requirement for employment. During job interviews, female applicants often face questions about their private life, such as "Do you have a boyfriend?" "When do you plan to get married?" or "Will you have a baby in the near future?" Some contracts even stipulate that a woman is not allowed to get married or to have a child during the duration of the contract. In the Pearl River Delta, some factories have their own regulations. For example, some will not employ female workers who have been pregnant for seven months and whose children are below one year old. These kind of internal rules mean that a factory does not need to pay any of its workers' medical expenses incurred during pregnancy, or maternity leave pay (which the factory must pay under Chinese law). It can also help factories to keep the costs of production low, because female workers who have recently had children would require breaks for breast-feeding or time off to take care of their infant children. Article 23 of the newly amended Law on the Protection of Women's Rights and Interests says that recruitment should not be based on gender, nor should employers be allowed to use gender as an excuse to put additional job requirements for women. It also explicitly says that employment contracts must not include any clauses that deal with a female employee's marital or child-bearing status. Such a provision would certainly help remove unfair practices, but we have to query whether the labour departments will take the new provision seriously enough, and whether they will be able to monitor the recruitment process effectively enough. While we are not trying to underestimate the ability of officials within the labour departments, the fact is that when discrimination against female workers is so rampant and when they have to deal with so many other pressing employment practices issues such as wage arrears and illegal overtime requirements, it will be a big challenge for the authorities to monitor discrimination against women workers.

Sexual harassment in the workplace

In recent years, sexual harassment in the workplace has become a growing problem in China. According to a survey carried out in 2003 by China's first women's studies research centre, Huakun Womens Research Centre, 84% of the women interviewed said they had suffered one or more types of sexual harassment. The majority of the victims are unmarried working women under the age of 30. The survey indicated that 50% of the sexual harassment took place in the workplace and that in 36% of the cases, the perpetrator was the woman's supervisor. Another piece of research conducted by the Chinese Academy of Social Sciences in 2004 showed that one-third of the female migrant workers in the Pearl River Delta region had suffered sexual harassment while 60% of women migrant workers in Beijing reported similar experiences. Some mainland scholars said that it was more likely for female migrant workers to be sexually harassed because they are classed as both "migrants" and "peasants". As migrants, they were generally considered "outsiders" by local people and, as such, lacked social support, while as "peasants," they were considered the lowest class on the social ladder and, as such, they were the most exploited.

This is the first time that the Chinese government has included provisions banning sexual harassment in the Law on the Protection of Women's Rights and Interests since the law came into force in 1992. The new amendment has attracted much attention from the media. Article 40 of the amended law says that victims of sexual harassment preserve the right to complain to their employer or to other relevant authorities. This article will certainly be popular with women in China. But it is doubtful that it can effectively prevent sexual harassment in the workplace in practice. First, sexual harassment is not well defined in China and the new amendment does not clarify how women workers should report any sexual harassment. Second, Tan Shen, a researcher who has done extensive research into female migrant workers in the Pearl River Delta, has pointed out that most of the women workers she interviewed told her that they were sexually harassed by the owners and managers of their factories. Mainland Chinese media has also reported that some waitresses working in restaurants in Guangdong Province not only have to work long hours in an uncomfortable environment, but also often have to endure verbal and physical sexual harassment from their customers. If they complain to their bosses, they would only be told: "You had better do what the customer wants or else I will hold you responsible for any losses to my business." Female workers, especially migrants, are helpless when they encounter sexual harassment from their bosses and their customers, particularly when their bosses adopt this kind of "the customer can do no wrong" approach.

During a press conference on 28 August, Xin Chunying, vice-director of the Legislative Affairs Commission of the Standing Committee of the NPC, did not rule out additional legal clarification about what constitutes sexual harassment and how it should be dealt with. We would welcome clarification and we recommend that a specific commission be set up to supervise the way that the amended law is implemented. We hope that the Law on the Protection of Women's Rights and Interests will become a cornerstone of women's rights in China and a key weapon in the battle to protect female workers from discriminatory working conditions.

China Labour Bulletin
13 October 2005

Seeking Re-employment? Please show your divorce certificate!
 
In the middle of August, Yanzhao Dushi Bao (Yanzhao City News) published a story that has grabbed the nation's attention. The paper reported that China Northeast Oil Management Bureau had issued a statement saying it would be rehiring workers who had previously been laid off. But one of the criteria for re-employment was that the person had to be divorced. This led to an immediate and dramatic rise in the number of divorces among its laid-off workers. The national media picked up this story and more than 100 news organisations in China, including the CCTV, have been following this situation with editorials and feature stories.
 
Re-employment criteria
 
China Northeast Oil Management Bureau is a subsidiary of the China National Petroleum Corp, the nation's largest state-owned energy producer. The subsidiary itself is headquartered in Renqiu in Hebei Province. In 2000, this company, like many other state-owned companies desperately seeking to cut costs and raise efficiency, made sizeable cuts in its workforce. This subsidiary cut its payroll by more than 30,000, laying off men and women between the ages of 20 and 55. Those who had been cut received severance pay as compensation in accordance with their length of service, and technically ended their relationship with the company.  They were then officially referred to as "laid-off workers" (xia gang zhi gong) who had "undergone retrenchment" (mai duan gong ling). Previously, workers in China's state enterprise sector could expect lifetime employment.
 
However, on August 5, 2005, the oil bureau drafted a policy letter, aimed at assisting some of those who had lost their positions to find another job.  Sent out on August 12, the company letter asked all who had previously lost their positions with the company and now desired work to report to the personnel department and fill in a "Letter of Intent", if they met the company's re-employment criteria. Among the requirements for eligibility: if both husband and wife had previously been employed by the company and both had been retrenched, then one would be eligible for one of the new jobs; but those who had lost their positions, were divorced and could produce a divorce certificate would also be eligible. (The company's intention was to assist those in serious economic difficulties, especially single mothers with children).
 
According to the spokesperson at China Northeast Oil Management Bureau, the company's plan was to offer their former employees jobs, such as security patrol positions in districts where the company had built staff housing; traffic control and supervisory posts; security guards for specific buildings; gardening and landscaping positions; housekeepers; parking lot management and other service sector jobs. The jobs were part-time, four hours a day, with a monthly salary of 423 yuan.
 
Avalanche of divorces
 
Beginning on August 12, the day that the letter was issued, the marriage registry in the area where China Northeast Oil Management Bureau is located was swamped with laid-off employees seeking a divorce.  On August 18, one reporter was told by the Department of Civil Affair of Renqiu city that in the four days from August 12 to 17, now fewer than 65 couples, all of whom were former employees of the company, had applied for divorce. By the morning of August 18, the registry had run out of divorce certificates. Since the subsidiary company is a large operation with units and branch offices spread around several districts of this northern province, the number of former employees seeking divorces could eventually be much higher, one current company employee told a reporter.
 
According to a story published in the Henan Ribao (Henan Daily News), at least 30 couples living in a company-built village of 530 households were reported to have applied for and received a divorce as of August 17. This information came from a man who himself had just been divorced on that day. According to another report, among laid-off workers in this area the common greeting has changed from "Have you eaten?" to "Divorced yet?"
 
China's domestic media has described those seeking divorces in this way as being "peaceful and harmonious" "having warm feelings for each other" and "going hand-in-hand" to apply for the divorces. . According to one official handling the applications, many of the couples applying for divorce had obviously not done any preparation at all. They had not come to any agreement on major issues, such as the care and custody of their children or the division of their home and other assets, but they assured the official that they could achieve a "generous and mutually forgiving" agreement in a short period of time.  The reporter found that those divorcing felt that their lives would not change much after they divorced and that they still planned to live together.
 
A look at household incomes
 
These laid-off workers were getting divorced in order to get part-time jobs with the oil management bureau and a wage of around 400 yuan a month. In most cases of couples seeking a divorce, either one was still working or both of them were formerly employed by the company. Since they did not fulfill the criteria laid out in the company letter, the only way they could see to get a job was first to get divorced and then apply for the job as a single, unmarried person.
 
While this was the immediate reason for the divorce applications, clearly the fundamental reason is the financial difficulties these couples are facing. According to one woman who was formerly employed by the company, then laid-off and is now divorced, her "ex-husband" is employed as an equipment maintenance technician in a subsidiary of China Northeast Oil Management Bureau and earns about 800 yuan a month. Their child is still in school. Another divorced man, laid off by the company and now applying for a part time job, said that his "ex-wife" had not used cosmetics for several years and that neither of them could even afford to buy new clothes.
 
It may seem strange that these retrenched workers, who only a few years ago received several tens of thousands of yuan in severance pay, are now in such dire straits. In fact, the workers have to pay nearly all of their retrenchment money into two vital funds: their retirement pension fund and their medical insurance plan.  According to one worker, the amount she had to pay into these two funds was 2,015 yuan and 808 yuan, respectively, in 2004; and 2,350 yuan and 832 yuan in 2005. Since the chances of her ever finding work again were very low, and she would have to keep paying these amounts every year until retirement age, she was afraid to use her retrenchment payment for any other purpose. "The monthly payments will rise further next year, so the compensation pay I received can't possibly cover even my basic living expenses," she told a reporter. Given this kind of financial difficulty, it is hardly surprising that these laid-off workers should be so eager to seek part-time employment that pays a monthly wage of just 423 yuan.
 
Company revises policy
 
The China Northeast Oil Management Bureau found itself in a very embarrassing situation as a result of the wave of divorces sparked by its unusual preconditions for re-employment. The company issued a supplemental notice on August 18, saying that only those people who had divorced prior to August 5 would meet the requirements for re-employment.  Although this notice halted the divorces, it brought additional headaches to those who had already started divorce proceedings in the interim. According to one report, one new divorcee said, "I've already gotten a divorce, and according to the criteria, I should get the position. If the (original) letter doesn't count, who's going to take the responsibility to compensate me for my losses from the divorce?" Another recent divorcee said, "We can't possibly get remarried. If we do, then we will have no chance at all of getting a job." Even more serious, most of the female divorcees are reportedly now worried that this "paper divorce" might actually become a reality. In the week since the revised policy was issued, rumours have been circulating that some of the "ex-husbands" have now had a "change of heart", suggesting that many of the women might have lost their husbands for good in this mad dash to get a part-time job.
 
China's millions of laid-off workers have become one of the most vulnerable groups in society today. Stripped of their former right to employment, their social position and respect have steadily fallen to the lowest of levels.  Although intended by China Northeast Oil Management Bureau to offer some re-employment opportunities to its laid-off workforce, the new policy instead caused a wave of divorces that seriously undermined society's respect for these people and at the same time threatened their last bastion of stability – the family.
 
Millions of "workers who have left their positions" and who are able and ready to work, remain unemployed, despite the fact that in April 2005, the government announced that the number of employees retrenched from state-owned enterprises had finally peaked. As this episode of "divorce for re-employment" shows, the central government's reform policies can have a very negative impact. While not negating the need for positive reform action, the incident vividly highlights how important it is that the government should reconsider the suitability of its past reform policies and strive, in future, to formulate compensation and re-employment programmes that have fewer negative repercussions.
 
Background information
 
•  In the 1990s, China's state owned enterprises launched two reform policies: "cutting staff to boost productivity" and "enterprise restructuring". According to government statistics, over the seven-year period from 1998 to the present, China's state enterprises have cut their workforces by 60 percent, or about 30 million people in all. These are the so-called laid-off workers.
 
• In an effort to address the problem of re-employment for these laid-off workers, in 2002-2003 the CPC Central Committee, the State Council and its subordinate departments issued nine major policy documents including the "Notification on Further Improving the Work of Re-employing laid-off workers". In these various documents, the central authorities called upon local governments, state-owned enterprises and private enterprises around the country to actively assist laid-off workers in finding re-employment.
 
• To address the livelihood problems of laid-off workers, the Chinese government has set up a social insurance system consisting of "three lines of protection", namely: 1) those laid off from state-owned enterprises can receive a basic living allowance (jiben shenghuo baozhang) from the reemployment service centers for up to three years; 2) if they still have not found a job by then, they can receive unemployment insurance payments (shiye baoxian jin) for a maximum of two years; and 3) if they remain unemployed at the end of this two-year period, they can apply for the minimum living allowance (zuidi shenghuo baozhang fei), to which all impoverished urban residents are entitled. As of June 2005, the national average sum paid out as urban minimum living allowance was 154 yuan per month. By contrast, the average annual salary for urban employees nationwide in 2004 was 16,024 yuan, or an average monthly salary of 1,335 yuan.
 
30 August 2005

News Brief

Ninety percent of migrant women workers in Guangzhou give birth in unlicensed clinics

Guangzhou Labour and Social Security Bureau revealed last week that 90% of the pregnant migrant workers in the city could not afford to give birth at licensed hospitals. Instead, they could only give birth with the assistance of unlicensed midwives. There are 300,000 female migrant workers in the city and most of them are not covered by medical insurance, let alone maternity insurance. Statistics shows that 90% of childbirth deaths take place at the unlicensed clinics. The bureau plans to release a new policy which provides medical insurance to female migrant workers, including free childbirth at hospitals.

Luo Xiaoqing, a public health official in Baiyun District of Guangzhou, told Guangzhou Daily that there were 38 unlicensed midwives in the district and she had complained to the police several times, urging them to punish the midwives' illegal practice. She named one midwife, Lin Xiaoyin, who caused three childbirth deaths in the last six years. These midwives used to be "barefoot doctors" or in some cases, garbage collectors from rural areas.

Migrant workers' low income and the high prices at the hospitals give rise to a demand for unlicensed midwives. Although the government gives each pregnant worker a subsidy of 800 yuan for childbirth, most hospitals charge more than 1,000 yuan per delivery. Unable to afford these high medical fees, most of these women give birth in illegal clinics.

In order to combat illegal clinics, Zhang Jieming, director of Guangzhou Labour and Social Security Bureau, said the bureau would release a new policy later this year to provide female migrant workers with maternity insurance. By then, they could enjoy the same rights as local women and their expenses for childbirth will be exempted in hospitals.

17 October 2005

Sources: Mingpao (9 October 2005), Guangzhou Daily (8 October 2005)