Brief Analysis of the Draft Regulation on Collective Negotiation of Guangdong Province
The provincial government of Guangdong is putting up a draft law on collective negotiation for open consultation, the Guangdong Provincial Regulation on Collective Negotiation and Collective Contract (Draft) from 11 October to 31 October. A similar attempt was made by the provincial and the municipal government of Shenzhen in 2010 which was frustrated by oppositions from the foreign trade associations. The purpose of re-introducing the law is to formalize collective bargaining and restrict excessive strikes in the province which has not reduced in number since the ACFTU launched the universal unionizing and bargaining campaign three years ago. Collective negotiation is established by local provisions in 27 provinces and municipalities. There is no national law on collective bargaining in China.
The draft deals mainly with circumstances including strikes during collective negotiation and it seems to be more comprehensive compared to the previous one. It should be noted that the law is so drafted based on the many strike cases and the fact that workers are more able to organize themselves spontaneously, elect their own representatives and put forward their demands and bargain with the employers outside the ACFTU. Workers and the representatives they elected are suffering from more aggressive retaliations and dismissals from the employers, as well as administrative detention, even criminalization by the government. The government urgently needs a legal tool to retrieve control under the official collective negotiation mechanism.
As the representation of the ACFTU could not be challenged by workers in collective negotiations, their concern, as well as that of the labour organizations and academics in China is whether the law will give maximum access to workers in making use of the law to bargain on the shopfloor, or to make the ACFTU bargain fairly on their behalf. Protection of the workers’ right to take industrial actions to steer the official bargaining institution towards their interests and without retaliation is of great importance.
There is no law in China that prohibits strikes although they are not protected either. The collective negotiation regulation of Guangdong province, if passed as it is currently drafted, will become the first to stipulate clear prohibitions and legal penalties against workers for the concerted activities they take.
Features of the draft law
The ACFTU is the only collective negotiation agent and its influence and control in the election and appointment of the workers’ representatives is guaranteed through appointment or direct facilitation by the upper federation (Article 16). A new provision is stipulated that allow workers to recall the trade union chairperson as the chief representative in the negotiation with one-third of the employees as the quorum (Article 19). Although election of workers’ representatives (in workers’ assembly) is mentioned, there is no procedure for their nomination and election.
Shopfloor wage negotiations should take place annually, or when labour productivity, company profits and the CPI index changes. Workers are allowed the right to press the company union or the regional federation to represent them and request a collective negotiation meeting with the employer if more than one-third of them agree to do so (Article 26). This provision which was strongly objected by the employers three years ago, could provide space for workers’ participation and possibly a higher level of trade union consciousness.
Article 30 and 31 are most controversial and they restrict the employers’ actions and the concerted activities of workers during the negotiation. A prescribed list of concerted actions of workers including work stoppage and go-slow are banned during collective negotiation. Workers are liable to termination by the employers if they do so. Protection is narrowly stipulated only when the employers reject the trade union or workers’ request for a collective negotiation (made through the trade union) (Article 57).
Yet, the punishment for workers taking the prohibited activities during negotiation is unevenly severe (Article 60). Without immunity, the public security is authorized to impose administrative punishment and criminal penalties against workers and their representatives if the Public Security Administration Law is breached, including when company operation and productivity is disrupted. The above law has been commonly used by the employers to force workers to go back to work or to bring them to the court. Abusive and even illegal practices of the public security to detain and even criminalise the strikers have been widely noted. There is no oversight or a mechanism to check the state power in putting down strikes. More unfair dismissals and state punishments of the strikers could be expected.
The law also does not deal explicitly with wild cat strikes outside the so-designed collective bargaining mechanism. The law only vaguely says the trade union, government and the employers’ associations should facilitate for prompt resolution (Article 34). More and more wild cat strikes are staged for bargaining purposes nowadays and the strikers are electing their own representatives. Unless the strikers accept the leadership of ACFTU and provided that it steps in a timely manner, they are liable to disciplinary penalties.
Although lockouts and a number of unfaithful bargaining practices of the employers during the negotiation are prohibited (Article 30), the employers are ordered for rectification only and the penalties for violation are light and unclear. Moreover these prescribed unfair practices do not include the employers’ anti-strike measures. There is simply no independent mechanism, whether the shopfloor dispute mediation mechanism or the labour arbitration system to handle the employers’ unfair practices. The draft would encourage more retaliations which has been commonplace already.
To handle dispute and disagreement during the negotiation, a two-step conciliation and mediation based on mutual consent of the employers and employees is proposed (Article 47 and 50). The law does not stipulate further steps or mandate labour arbitration if the conciliation and mediation attempts fail to reach an agreement for both parties. However, by agreeing to mediation, the award would be final and further industrial action is prohibited.
A cool-off period is introduced to restrict industrial actions in at least seven sectors not strictly defined as essential services (Article 56). The sectors include public transportation and the broadcast and communication which are not essential in the strict sense. The decision to suspend a strike and stoppage of work, and to extend the restriction to more sectors lies in the local government instead of an independent committee. It is also not justified that the restriction is extended to the ‘affiliate companies’ of the enterprises in these sectors; and no distinction is made to the classes of personnel within the restricted sectors. Corresponding prohibitions on the employers such as lockouts are not stated. And the compensatory mechanism for depriving these workers the right to take industrial actions has not been established apart from a vague reference to negotiation facilitated by the government.
The agency workers continue to be excluded from taking part in the election of the workers’ representatives and negotiation with the employer, although protection of the agency workers is included in the scope of collective contract negotiation. The trade union and bargaining right of the agency workers remain unclear in the draft legislation.
16 Oct, 2013