Mainland Media

The rise of local Protectionism and its impact of OSH Compensation

Adequate compensation for industrial accidents and disease is a critical part of occupational health and safety systems. A weakness in any part of the compensation process can have a particularly negative knock on effect on the whole system. It is essential that the relevant laws are comprehensive and enforced, set adequate standards of industrial safety, that compensation is set at levels that are both punitive to the employer and afford a sustainable and decent life for the injured or ill worker. Most important in a market economy, there has to be adequate employer insurance against claims so that bad employers come under pressure from high premiums. Compensation must raise the value of workers' lives and limbs so that bad workplaces become costly and unprofitable. Obvious weak points include insurance companies failing to pay compensation, bosses refusing to buy insurance, and doctors and judges falling under the influence of companies – usually in return for financial reward – in order to undermine claims.

In China the still fledgling OSH system is governed by the Law of the People's Republic of China on Prevention and Control of Occupational Diseases (2002), the Law of the People's Republic of China on Work Safety (2002) and the Regulations on Workers' Compensation Insurance (2003). To date, these laws have been poorly implemented. Apart from the problems listed above, it is illegal to organise independent workers' organisation through which safety standards might be enforced on the shop floor and compensation claims be vigourously pursued.

The newspaper report below is an edited translation of an article that initially appeared Henan province edition of Workers' Daily February in early 2005. It describes yet another problem that is rarely considered. The issue of local protectionism in China and the impact this can have on compensation claims filed by migrant workers who have suffered injury or occupational disease while working hundreds of miles from their hometowns. The original article is available from IHLO.

Local Protectionism Blocks the Path to Compensation

Su Xian Shi and Si Gu Dun are townships in the county of Shang Cheng. They form part of an area made up of eight townships in southern Henan province that fall under the government's official rural poverty line [i.e. households with an annual income of less than 625 yuan – IHLO]. Between 1992 and 1999 hundreds of young people from this area left for work in the twenty or more quartz factories scattered around the town of Fu Dong on the outskirts of Yixing city in Jiangsu province where they worked on average between three and five years. Working with quartz produces large amounts of dust and the workers spent up to ten hours a day in the workshops without masks and breathing in the dangerous particles. Silicosis was inevitable.     

By 2000 the disease has taken the lives of Liu Dahua and four others. Many more were diagnosed with either symptoms of silicosis or the disease itself contracted as a direct result of their work in the factories of Fu Dong town. Just before the 2000 Spring Festival, 159 workers from Su Xian Shi and Si Gu Dun who had previously come together and returned to Yixing city to file for compensation received a payout of 4.9 million yuan . In the months that followed, the breathing and physical condition of more workers in the six nearby townships deteriorated as the silicosis in their lungs made its presence felt. A second group of 189 workers who had not taken part in the first claim – simply because communication and information in this poverty stricken area is slow – made the trip to Yixing to present a joint claim for compensation.

Article 44 of the Law of the People's Republic of China on Prevention and Control of Occupational Diseases stipulates that “The workers may have their occupational diseases diagnosed in the medical and health institutions that undertake diagnosis of such diseases in accordance with the law and are located in the place of the employer or the workers' residence”. Accordingly, the second group of 189 workers went to the Henan Province Research Centre of Occupational Diseases, for help. The centre organised free medical checks for 291 former quartz workers from Shang Cheng County, carried out by 15 qualified staff. Of this group, 96 were diagnosed with silicosis and a further 195 were told they would require regular checks to chart their condition in order to get a diagnosis as soon as the disease appeared on their lungs. The sheer scale of the problem caused widespread shock as outbreaks on this scale are rarely seen [‘reported' would be a more accurate word – IHLO] in China.

Between 1999 and February 2005, silicosis has killed 14 people from Shang Cheng County. A further ten workers are in extremely serious condition and require expensive medical treatment which has plunged the families are into serious and mounting debt. Many of the sufferers are between the ages of 25 and 40 and are main breadwinners for their families. These households face total collapse as soon as the disease renders them unable to work. Liu Dahua and his two brothers have been killed by the disease leaving behind four children whose mothers have remarried leaving the Liu brothers' 66-year old father in sole care of the children. He scrapes together the school fees by doing day work on nearby farms during the ploughing season.

The second group of 189 workers used their own funds to put together a huge dossier of proving their condition and its cause. They elected Cao Yizhong, who is suffering from the early stages of the disease, as chief representative. In 2003, the group delivered a full report to the top Shang Cheng county leader Zou Hong describing their urgent situation. Zou Hong and his deputy made further inquiries into the case and then issued a statement ordering the legal department of the county government and the trade union to coordinate and follow up the case with the authorities in Yixing and “achieve justice for the 189 Shang Cheng migrant workers either through negotiation or the courts”. The county government also formed a working group made up of officials from the government itself, the trade union, the labour bureau and the legal department. On December 29, 2003 seven representatives from the workers and the group travelled to Yixing city in Jiangsu to begin negotiations with the authorities there. They were met by the director of Yixing city government offices, Wang Minghui: “[W]hat are you people doing back here? There's no meeting, no negotiation and no compensation”. On their return to Shang Cheng, a senior legal official for the county government wrote directly to Hong Ya, the mayor of Yixing. The 10-page letter mapped out the plight of the workers and asked for intervention on their behalf. Over year later, there has been no response.

Whether from a moral, logical or legal perspective, this response from the Yixing government is unacceptable. Article 30 of the aforementioned Law on the Prevention and Control of Occupational Diseases is quite clear over the question of responsibility for occupational disease hazards. Clause 1 states that “the strength or concentration of the factors of occupational disease hazards shall meet the national norms for occupational health; Clause 2: there [shall] be facilities commensurate with the prevention occupational disease hazards; Clause 5: the equipment, tools, apparatus and other facilities [shall] meet the requirements for protecting workers' physiological and psychological health…

Which of the 20 or so quartz factories in Fu Dong town installed dust prevention safety equipment or met national standards on safety? Why were no masks issued despite the fact that at times the dust became so thick it was difficult to see colleagues' faces?   And if the city and township governments had made themselves aware of the problem earlier could such a large scale incidence of occupational disease have been avoided? [The legally correct implication is that, in accordance with the law, they should have been – IHLO]   For years, these workplaces have damaged the health of migrant workers. When the problem was discovered, why wasn't something done?   Why doesn't the lives of hundreds of migrant workers count? This is a dereliction of duty by the [Yixing] government.

Secondly, the criminal responsibility of those at fault should be pursued in accordance with the law. Article 71 of the OSH prevention and control law clearly states that “Where due to violation by the employer of the provisions of this Law, a major incident caused by occupational disease hazards occurred or other serious consequences ensured, if a crime is constituted, the persons directly in charge and the other persons directly responsible shall be investigated for criminal responsibility according to the law.” And yet to date not one person from the Fu Dong factories has been punished by the Yixing government. National law has been reduced to a joke and the lives of ordinary people treated as worthless. It is profoundly disturbing and disappointing and we cannot help but ask if the Yixing government is really completely unconcerned about the lives of Shang Cheng migrants?

They may well be worried that if they compensate this second group of workers, it will be followed by a third group, a fourth group also seeking compensation? Well so be it! Every single worker who has been scarred by silicosis in these quartz factories is entitled to compensation. There is no other moral, logical or legal solution.

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IHLO Translation
November 2005