International Solidarity (ICFTU, Union Statements)

ICFTU Observations to the ILO Committee of Experts on the Application of Conventions and Recommendations on Convention No.138 on Minimum Age

Mr Juan Somavia
Director-General
International Labour Office (ILO)

                                                                                  31 August 2006

Dear Mr Director-General,

ILO Committee of Experts on the Application of Conventions and Recommendations

As per previous practice, I have the honour of sending you observations concerning compliance by The People’s Republic of China with the following convention:

Convention No. 138 on Minimum Age, 173 (ratified 1999)

The continued existence of Child Labour

In 1999 China ratified Convention No. 138. In terms of domestic legislation, new laws were implemented in December 2002 explicitly banning the employment of children under the age of 16 years. These new regulations impose fines for employers and put the onus on the employing companies to check the workers identification cards. Other legislation includes the relevant provisions in the Chinese Labour Law, the Law on the Protection of Women’s Rights and Interests, the Law on the Protection of Minors, Regulations on the Prohibition of Child Labour, and the Notice on the Prohibition of Child Labour.

Despite these initiatives the existence of child labour, particularly in the private sector and the southern/south eastern parts of the China remains high due to the lack of proper enforcement of legislation, a lack of resources targeted at the problem (both in terms of financial resources and manpower) and the failure of the government to address underlying causes of child labour, such as access to free education and equal employment opportunities for the rural poor and migrant communities.

The recent ILO report, “The end of child labour: Within reach” [NOTE 1] stated that “China has 350 million children, accounting for 20 per cent of the world’s total. Although there is little hard statistical information on child labour trends in China, the evidence on poverty reduction and educational expansion can be taken as important proxy indicators. In the past 25 years, China has taken more people out of poverty and enrolled more children in school than any other country. There is thus strong circumstantial evidence that this has also had a dramatic impact on child labour in China.”

While it must be stressed that the government has taken many steps towards eliminating child labour and reducing the major causes of child employment the positive nature of the report is questionable for two main reasons. Firstly, as the report itself makes clear there is little “statistical data” on child labour and thus there is only “circumstantial” evidence to deduce that child labour is being reduced through current education initiatives. Secondly as we explain below there is increasing evidence that child labour is currently on the increase in the south of China and that educational opportunities for many of China’s children remain poor and in some cases continue to decline leading to continued or increased motives for child employment.

The vast majority of Chinese factories and enterprises do not employ children, most do not employ children in the worst forms of child labour and yet the recent focus on competitive production combined with a poorly regulated labour market and rampant corruption has meant that some employers have sought child labour as the solution to reducing production overheads. The extent of child labour remains difficult to asses to due a lack of official reporting on cases and the lack of transparency in statistics.  In part this is because most child labour takes place in small private factories which are harder to monitor and regulate than larger state owned enterprises. In part however the lack of reporting (and indeed the continued existence of child labour) is because of a lack of monitoring in general and a lack of resources in regulating, implementing and monitoring Chinese domestic legislation on child labour and related laws.

According to some reports child workers can make up some 20 percent of the workforce in certain industries. Child labour is found predominantly in smaller factories such as local and township level factories but child labour has also been found in SOEs and most other types of enterprises. Geographically child labour is found in coastal and richer southern provinces with higher proportion of private industry and migrants, such as the Special Export Zones (SEZs). In these factories the punishments for being found using child labour may not always outweigh the risks, especially if one operates with local authority support or connections. There are also numerous ways employers can avoid penalties, for example, by placing the responsibility on the children. One of the main ways that children find jobs are by using fake or borrowed ID cards – fake ID cards can be bought at many street corners. Employers would then blame the children for using fake ID cards and claiming they were adults even when appearances clearly suggest the worker is a juvenile. Regulations were implemented in December 2002 which put the onus of checking ID cards onto the employers, in an attempt to ensure employers cannot shirk their responsibility if found employing child labour. However, despite the welcomed intention the new law has not appeared to stem the problem for those unscrupulous employers who still see profit in employing children.

Examples of industries employing children are the firework industry, piece work at home (anything from car seats to plastic flowers), entertainment (informal), begging – organized groups of beggars and street sellers such as flower sellers, singers, etc, brick kilns, and prostitution (trafficked and other). A People's Daily Report cites an investigation into labour conditions in Shandong province's Jinan City. According to the report, the use of juvenile labour is most prevalent in the following industries: toy production, textiles, construction, food production, and light mechanical work.[NOTE 2]

Poverty is the main cause of child labour. Recent reforms have removed much of the social safety net and the increasing gap between rich and poor has seen a rise in the numbers of the population under the (very low) Chinese poverty line. [NOTE 3] Along with the rising Gini Coefficient there has been dramatically reduced educational opportunities for the vast majority of China’s population (especially in the rural areas, and especially female students and minorities). Inflation, rising living costs, unemployment and the reduction in social services, medical benefits and other subsidies corresponding with the demise of the State Owned Industries (SOEs) and their “Work Unit” (Danwei) system which guaranteed minimum accommodation and other benefits, mean that for many unlucky Chinese, the economic reforms are creating poverty, not wealth and at the same time social security is underdeveloped and corrupt.  

The disparity between regions and cities is pronounced, as it is the coastal areas of the country that have emerged as urban economic powerhouses, while the interior regions are still mainly used as farmland and are the source for many job-seeking migrants. Hence, the ratio of urban to rural incomes increased from 2.2 in 1990 to 3.1 in 2002, meaning that rural incomes are but a third of those in the cities. This is an extremely high difference by international standards. Yet if measured by comparison with the richest parts of the country, the difference jumps to tenfold. The consequences of the rural poverty that these differences reveal are not hard to identify: in 35 poor and rural areas recently surveyed for a World Bank project, four out of ten children aged 7 to 15 had received no schooling whatsoever.

Education

China has recognized in its Constitution the right to education for every citizen and introduced a nine-year compulsory education system, stipulating that the state should provide nine-year compulsory education for all primary and junior middle school students. Since 1949 the numbers of children attending school has risen and risen. According to most reports the vast majority of children (official figures give 95 -98 percent) now attend and complete five years of primary school.  However, according to statistics from the China Education and Research Network, the number of primary schools has decreased and enrolment of both primary school and second level school has also decreased.

Most crucially, the law fails to guarantee the funding of compulsory education, thus forcing or allowing many schools, particularly those in the impoverished rural regions, to either go on collecting the tuition fees or charge various “miscellaneous fees” on their students in the name of “voluntary donations”, “fund-raising for school construction” or “after-school tutoring fees”.

The privatization of education and health care means that family illness/crisis can contribute to or cause extreme poverty resulting in a child being sent to work. The shift of responsibility towards local authorities maintaining standards has also seen a rise in the unequal standard of education and opportunities for children – poorer, rural and Western areas along with minority areas have higher drop-out rates and lower standards of education – complete with lower opportunities for tertiary education and employment. This reduces the motives for keeping children in education and the rising costs encourage poor families to remove children. The Compulsory Education law of 1995 states that local governments must be responsible in part for education funding and there has been a corresponding 10 fold increase in school fees between 1991 and 1997.[NOTE 4] Schools now charge fees for tuition, schoolbooks, school uniforms and meals are also paid by the parents.  In 2001, the education budget was reportedly only 3.19 percent of the CGP. Although this is the highest rate since 1949, it is still much less than the average education budget in the world - around 5 percent of GDP.

In January 2006, the Ministry of Education released statistics saying that in 2004, school dropout rates at primary schools and junior high schools were at 0.59 percent to 2 percent and 2.49 percent to 7 percent respectively. However in 2004, Northeast Normal University interviewed junior high school students in six provinces and found that the school dropout rate was higher than 40 percent. Girls in particular have high drop out rates. One study by the British Department International Development (DiFiD) reported that a county in Gansu province had a graduation rate of only 25 percent of the children who enrolled in primary school. All were boys. The second year of junior high school is the one when most drop outs occur. Most parents and teachers can assess by that age (13-14), if the children could make their way to high school and if at that time, they realize the children cannot get admitted to high school, they would rather to save the money from sending them to the final year of junior high school. [NOTE 5] In order for junior high schools to achieve a higher rate of high school enrolment rate and hence be considered a good school, some try to expel or persuade low performing children to leave before finishing the end of the last year of junior high and taking the entrance exam. In some reported cases, teachers were monetarily rewarded by persuading “hopeless” students to “voluntarily” leave the school.

In 2002, research by the Beijing-based Internal Migrants Legal Aid and Research Centre found that many child flower sellers, so-called “flower children” working the Beijing bars came from You county in central Hunan province. You county was found to have a school drop out rate of 40 percent amongchildren over 10 years old. Increasing school fees were found to be the primary reason for the increase in drop outs and corresponding increase in child workers.” [NOTE 6]

Education for Migrant worker children

At the same time, while children in the rural areas might not have access to education, their counterparts who traveled with the parents to cities face the same fate, if not worse. The administrative system of hukou, or household registration, limits the possibility for rural children to receive education in the cities, even though city schools are better funded. According to the hukou system, local governments only allocate their resources, such as education, to the permanent residents. In other words, migrant workers’ children, who travel with their parents to a city, where they have no rights to register as permanent residents, even if they were born in that city, are not entitled to schooling provided by the local governments.

Many migrant workers are forced to separate from their children. Without free or cheap children daycare services, while most of the migrant workers are shut in the factories, construction sites and restaurants working long hours up to 15 or more a day, they cannot possibly be able to attend their children themselves. Sending their toddlers to nursery centers, where urban residents send their children to, is out of question.  Migrant workers (estimated by official figures to number at least 13 million), receive the lowest possible wages, usually equivalent to minimum living allowance of the city, if the employer pays them lawfully and do not receive any subsidies for childcare that their urban counterparts may do. It is estimated that some 20 million rural children stay in the cities with their parents and 9.3% of these children officially do not go to school at their mandatory schooling age, which means that at least two million migrant children between the ages of 6 to 14 who should receive compulsory education are not receiving any education at all.[NOTE 7]

In 1998, the State Education Committee and the Ministry of Public Security finally addressed the issue by releasing “Temporary Methods for Migrant Children and Teenagers’ Education” which allow migrants' children to register at local schools by paying temporary enrolment taxes. However as most migrant workers are paid at best the minimum wage such a method is proving to be unrealistic as the school ‘taxes’ can amount to several thousand Yuan per year. Some schools also charge for “sponsorship”  or their children’s application for admission will be turned down. This is why since the mid-1990s, migrants have started to organize and run their own schools which are designed to be affordable and accessible but there is no guarantee of the quality of teaching and payment for teachers. In some areas, we can find the whole school is in fact only one class, with children aged from 7 to 14 sharing a single room, learning the same knowledge, regardless of their age and mental development. The issue of poor learning environment is compounded by the fact that generally these schools are not legitimate educational institutes and cannot issue certificates or direct graduates to higher level of education.  Only a few cities have granted legal status to migrant schools.

Seeing that the regulations are not working, several local governments launched some specific and partial temporary enrolment tax exemption measures, as an attempt to include some migrants' children in the state-run schools. However, tax exemption cannot be given unless one manages to go through a complicated application process, such as providing the parents’ labour contracts, temporary residential permits, original hukou records, etc. Only migrant workers who are formal workers with stable jobs and able to obtain all sorts of documents required, are entitled to this benefit. Once again, the vast majority and the most disadvantaged migrants, who are employed in the informal sectors and have not applied for all necessary documents, are excluded from this new measure. In some cases, even if part of the tax is exempted, migrant workers still find it unaffordable.

”Only a few cities have granted legal status to migrant schools. Xiamen in particular has been praised by official Chinese media for its handling of migrant schools and its attempts to help such schools register and improve standards. The city government has reportedly set aside three million Rmb to raise the standards of migrant schools by training teachers and improving school facilities and safety standards of the premises. Huang Yang of the Xiamen Education Bureau's development and planning department stated that; "Our city government leadership has recognized that a large number of our migrant workers will eventually settle down here. Their children's education will affect the quality of our future resident's". However this acceptance of the need to educate migrant children is not one commonly shared and migrants in general face discrimination and in some cases hatred by the local population.”[NOTE 8]

In 2003, China was visited for the first time by the United Nations Special Rapporteur on the Right to Education, Katarina Tomasevski. Her report condemned China's record on education, asserting that the central authorities have failed to provide education for children of migrant workers, and complaining of arbitrary school fees that many families cannot afford and a budget which does not provide adequate funding for education. With only two percent of gross domestic product spent on education, compared with the minimum six percent recommended by UN, China covers only 53 percent of school funding, a much lower coverage when compared with countries with compulsory education policy. She even commented that “even Uganda, a poor country, was doing better than China in guaranteeing the right to education.” Her comments were not quoted by China’s official media, instead, her visit was described as “Ms Tomasevski appreciated China’s effort in improving its education and has raised some suggestions”. However, a local internet user posted the original Washington Post report on an internet discussion forum, where s/he hinted that Chinese media failed to report the truth.[NOTE 9]

Education, with its urgent but not necessarily politically sensitive nature, has been a hot topic for National People’s Congress (NPC) delegates in their annual meetings in the last couple of years. After increasing exposure, on 5 March 2006, at the opening session of the 2006 NPC meeting, Premier Wen Jiabao pledged that his government would eliminate tuition fees for rural students receiving a nine-year compulsory education before the end of 2007. The new policy would benefit some 160 million school children in the vast rural regions, who make up nearly 80 percent of the country's primary and junior middle school students. [NOTE 10] The government plans to achieve it by increasing financial input for education in the coming five years and gradually raise the proportion of annual education expenditures to four percent of the gross domestic product GDP, according to an official document released on 6 March 2006. [NOTE 11]

However, even this pledge does not solve the problem of those 20 million migrant workers’ children who want to study in the cities. If they want to study free, being separated from their parents and returning to study at their hometowns is the only choice, and yet for many this is not a feasible choice.

As of now, what directly addresses the specific issues facing these children is a draft amendment of the Compulsory Education Law, which is currently being reviewed by China's lawmakers. A special provision has been mooted which will add that children of migrant workers are entitled to receive education at the places where their parents and legal guardians work and dwell and requests local governments to ensure that children of migrant workers enjoy equal conditions in obtaining compulsory education. In fact, the whole set of education problems discussed here is not merely an education issue, but also a hukou system issue; a result of the rising income gap between sedentary citizens and migrant workers; the lack of teacher training for rural areas; the lack of facilities in the cities to accommodate migrant children; and a social support network for disadvantaged groups. Without practical recommendations and a full review of these related issues and policies, even the most perfect compulsory education law cannot make a big difference to these children in practice.  

Labour shortages and the rising trend of child labour in south China

Increasingly there is a serious issue of a shortage of labour for the unskilled jobs in the south of China. In part this is due to the ageing population but it is also due to increasing demands for better wages and conditions. Some employers are shifting to inland provinces in China to find cheaper labour while others are resorting to the use of child labour. Child Labour has been increasingly reported in the footwear industry and in the smaller workshops producing textiles, shoes and related products.  In 2000, media reports said that that 84 children had been kidnapped from southern China's Guizhou province to work in coastal cities assembling Christmas lights. The youngest was 10. Many of the under age workers in the south are young girls ranging from 12 – 16 who are employed for their youth and agility in the textile, garment and shoe making factories. According to a Chinese Women News’s report in 1996, 73.5 percent of the bour it had interviewed in six provinces were girls.[NOTE 12]

Some schools act as middlemen for factories to get students working for them at summertime. Due to the labour shortage in Guangdong Province, factories in Dongguan, a massive industrial city, offer summer jobs to young students (age from 11-15) from Hunan and Guangxi.[NOTE 13]

One Chinese media report uncovered a primary school headmaster in Guangdong Province who was found employing students from his school in his private toy factory.  According to the report, thirty-five juveniles between the ages of eight and sixteen were found working.  When informed of the illegality of his actions, the headmaster allegedly appeared surprised, and claimed to be offering the students an opportunity to earn money. [NOTE 14] There appears to be increasing evidence that children are working with the connivance and often support of the schools in order to help defray school fees and earn commissions for the schools by offering such “holiday” work or apprenticeships”.

China Central Television recently exposed children as young as 13 being sent to work in factories (mainly producing toys) in Dongguan, Guangdong under summer job schemes organised by the schools. In return for working some 10 hours a day they received 450-600 Yuan a month. The apprenticeships appeared to be technically legal because the parents signed waivers saying they would not ask for compensation if their children were injured in the workplace. According to the CCTV report, the teachers brokering the apprenticeships were paid commission. Together with about a dozen other classmates, one boy was fired by the factory management for taking an unauthorised break. The group returned home and decided to seek help from local labour authorities which in turn led to the report. Most student however chose to complete their two month apprenticeship”. Fearing they would lose their jobs, a few even lied about their ages to CCTV reporters. One 13 year old claimed to be 19. Teachers and factory bosses interviewed for the programme claimed that they were merely helping the children financially by arranging the apprenticeships.[NOTE 15]

Many of the under age workers in the south are young girls ranging from 12 – 16 who are employed for their youth and agility in the textile, garment and shoe making factories. According to a Chinese Women News’s report in 1996, 73.5% of the child labour it had interviewed in six provinces were girls.[NOTE 16] Field studies show that the majority of child workers work very long hours. Most work overtime till midnight and usually only get paid at the end of the year or half year. Female children interviewed in May 2006 revealed that they usually worked from 8am to 9pm (with two hours meal breaks) during the low season and worked from 8am to 2am the following day during high season.[NOTE 17]

For many labour intensive factories child labour is worth while. A recent investigation into child labour, which interviewed 45 workers (mostly children), 8 parents and teenage school dropouts, 12 teachers and headmasters from primary and junior high schools and 12 government officials, showed that the average wage of children is around 400 -600 Yuan [NOTE 18] while the official monthly wages of many migrant workers is around 500 -800.[NOTE 19]   Children, being illegally employed do not need medical or social security payments and neither do they complain of long hours or underpayment. Most are too scared to complain and most feel the need to remain at work to help support their families.

Lack of Enforcement

Although China does possess national legislation banning child labour and related regulations, there remains a serious gap between legislation, its implementation, monitoring and enforcement. 

The fines for child labour employing factories remain low in practice. The 2002 Regulations state that employers who use child labour shall be fined at the rate of 5000 Yuan per month for each child labourer used; if child labour is used at work sites using toxic material, the fine shall be based on the provisions of Regulations for Labour Protection at Work Sites Using Toxic Material, or severe punishment shall be considered with fines at the rate of 5000 Yuan per month for each child labourer used.   However in reality many firms found using child labour are fined around 10,000 Yuan in total. At the beginning of June 2006, a report by the Yangtze Evening Post reported that a local court in Zhenjiang, Jiangsu Province, fined four companies 10,000 Yuan (US$1,250) to 40,000 Yuan (US$5,000) for hiring juvenile workers.

In addition, the chances of discovery are slim given the shortage of labour inspectors and the extensive collusion between private business and local officials. In many cases tip offs of upcoming inspections – either from Chinese officials or sometimes form compliance officers from brand names buying the goods – mean that children are kept well hidden during an inspection or given the day off. The numerous anecdotal evidence of such practices and the disappearance of children out of the factory doors in the face of an inspector reveal how most cases are simply not discovered and therefore the employer cannot be punished and the practice ended as proof is hard to find. The practice is bolstered by double and triple book keeping (on wages, hours, overtime and employees) by many private firms. Complex reporting procedures and inter-provincial red tape often prevent employers being punished for employing children from outside their own province.

In addition, adequate regulations and practice needs to be enforced to ensure that children who are rescued or otherwise discovered working have a proper follow up care and education to ensure that they do not simply get sent back to their impoverished families with no further action by the authorities.  At the moment this is lacking and in one case monitored by the Hong Kong Christian Industrial Committee it was found that a sub contractor not only employed children but actively sought child labour from poor rural areas to work in a toy factory in Guangdong province. “Once the situation was discovered the multinational company subcontracting the Chinese factory allegedly first denied the allegations, however it later accepted that there were ‘irregularities’. Following this admission they then cancelled their contract with the company concerned without any further action. This in turn led to the company laying off many of its adult staff as well as leaving the children stranded in Guangdong with no means of support or transport home.”  [NOTE 20]

Reporting and State Secrets

State secrets in China cover a wide range of issues and areas of control. The scope of what is defined as a state secret covers not only issues concerning national security (such as military or political secrets) but also issues which have not been approved of by the authorities as public.

Statistics are one of the areas most tightly controlled under the legislation and those regarding labour-related topics are very much included in the regulations. Child Labour (along with other labour related areas such as protests, strikes and structural reform[NOTE 21] ) is the subject of two main regulations issued jointly by the State Secrets Protection Bureau. The first was issued in 2000 by the State Secrets Bureau and the Ministry of Ministry of Labour and Social Security (MOLSS), and the other by the All-China Federation of Trade Unions (ACFTU) and the State Secrets Bureau in 1996.[NOTE 22] This material was made public in October 2004.[NOTE 23]

There are three main areas of state secrets; “top secret” (juemi), “highly secret” (jimi), “secret” (mimi). Finally there is “internal” (neibu) which, although it is not strictly a state secret, constitutes internal material which should not disclosed without approval” of the relevant organ.  The two regulations dealing with labour related-state secrets include highly secret, secret and internal classification.

“Undisclosed information and statistical data on the handling of child labour cases nationwide” is considered highly secret. There is no officially published national data on the extent of child labour and the number of cases prosecuted is also not published. Data must be collected from unofficial newspaper reports which are often sketchy and many cases are covered up by the local authorities.

In addition, general policymaking is also governed by state secrets legislation when it concerns matters deemed “sensitive.” And relations with the International Labour Organization are also covered by the legislation – making it difficult for the ILO itself to receive and transmit uncensored an transparent information:  “plans and countermeasures for participating in meetings of the International Labour Organization and other important international meetings” are classified as “highly secret” by the Ministry of Labour and Social Security, while “work plans and countermeasures concerning participation in the International Labour Organization and bilateral and multilateral communications with trade union organizations of other nations” are ranked as “secret” by the ACFTU.

Reliable and open data are essential for governments and other agencies to tackle child labour effectively. China does have legislation but unless legislation is backed up by implementation on the ground it will be ineffective. China has the additional problem of a lack of civil society overseeing the problem and this, coupled with the lack of freedom of association and independent trade unions means that there is little monitoring of the problem except by the few government resources put into effect.  There are increasing press reports on child labour but the data collected is not systematic and there is little serious efforts designed to survey the extent and nature of the problem and follow up on specific cases.

The current lack of ACFTU representation in the private sector also means that in most child labour employing factories the ACFU is not established. The ACFTU, as co-drafter of one of the relevant state secrets labour related laws - as noted earlier - works with the government to ensure that details of child labour cases and other related matters are treated as state secrets and remain hidden.

Conclusions                                                                                               

Although the Chinese government has addressed some of the issues under Convention 138 and has made legislative progress, much remains to be done. The ICFTU is particularly concerned about the lack of implementation of the relevant laws. Therefore the ICFTU suggests that the Committee of Experts may consider recommending to the government to put in place more effective measures to detect child labour and to implement effective measures to prevent employment of children.

Statistics concerning child labour should be made available in a transparent manner. These data should be made gender specific in order to be able to effectively address the employment of girl children. Data on child labour and information on policies and programmes for the prevention and elimination of child labour should not fall under any secrecy law or regulation.

Crucial to all attempts to put an end to child labour are adequate educational provisions and opportunities for all children, including the most vulnerable children – children in rural areas, children from ethnic minorities and girl children. Therefore the ICFTU suggests that the Committee of Experts may consider recommending the government to introduce educational opportunities for the children of migrant workers and to improve rural education facilities to prevent children from being led into employment.   

Kindly forward this document to the Committee of Experts for examination during its forthcoming session.

Thank you.

Yours sincerely,

General Secretary

ICFTU