“Industrial Strikes should be allowed to help build Harmonious Labour Relations”

The right to strike was removed from China's Constitution in 1982, on the grounds that the political system in place had "eradicated problems between the proletariat and enterprise owners". Despite expectations that the revised Trade Union Law would include the right to strike, the revised law skirts around the issue by stating (Article 27): "In case of a work-stoppage or a go-slow in an enterprise, the trade union shall represent staff and workers in consultation with the enterprise, institution or relevant party, and shall reflect the opinions and demands of staff and workers as well as raise solutions. The enterprise or institution shall strive for a settlement with the reasonable demands made by the staff and workers".

Article 27 does not employ the term "strike"(bagong), but instead refers to instances of "work-stoppage" (tinggong) and "go-slows" (daigong). There are increasing calls within China for legislation of the right to strike and continued academic debate on the issue. In reality the number of strikes (both spontaneous and planned, but always without the official recognition of the union if there is one) is increasing.

Below is an IHLO translation of an opinion piece by Wang Zhian at the usually outspoken Southern Weekend newspaper. The article begins with a short description of the strike of China Eastern Airline Pilots  in 2008 which was remarkable in several ways, not least because it was the first such strike by pilots but also because of the media attention is received due to the fact the pilots were flying when they went on strike.

IHLO wrote on the strike Behind the Defiance in the Skies: Pilots strike at China Eastern Airways and mass sick leave at Shanghai and Wuhan Airlines.
www.ihlo.org/LRC/WC/030608b.html

However in fact the article below uses the strike itself only as a reference point.  Instead it focuses on the need for workers to have legitimate and legal means to defend their rights without recourse to ‘breaking the law’. It argues that strikes will only increase if they, as a legitimate form of industrial action, continue to be denied.

Interestingly the article compares strikes in other countries and concludes that “putting freedom to strike within the legal framework is beneficial to the development of labour relations”. It further concludes  that if the authorities continue to deny workers the right to strike and proper channels of communication to address the unbalanced power relations in a modern economy, then wildcat strike action will increase. Thus it argues for clear legislation on strikes and related industrial  action. In summation, from a “legal point of view, if one wants to restrain a right [the right to strike], one has to recognise such a right, to start with.”

The article is one of several focusing on the need to address the right to strike that have been emerging from the mainland in the past few months. There is indeed a pressing need for clarity on the issue as strikes emerge as one of the most effective weapons of worker action in China – at least for those in the private sector.  However, as some will remember the debate on the right to strike has been going on for many years now. However the recent increase in official and semi-official pronouncements on strikes may signal a shift towards legal recognition.
For example in June 2008, one senior ACFTU official in Shantou penned an article  stating that the right to strike was  now “only one step away”  after the publication of the Draft Regulations on the Growth and Development of Harmonious Labour Relations in the Shenzhen Special Economic Zone. While this comment may be overly optimistic, the trend is certainly going in the right direction – although given the frequency of strikes there can be no other logical direction for the authorities to take.

Wang Zhian, senior journalist
Nan Fang Du Shi Daily, 5 April 2008

On 31 March, 2008, fourteen flights belonging to the Yunnan branch of the China Eastern Airlines headed to six cities -- Dali, Lijiang, Xishuangbanna, Mangshi, Ximao and Lincang. Upon landing at the destinations, the passengers were told that their planes could not park and were flying back to the departure city, Kunming. Later, China Eastern Airlines management denied rumours that the incidents were “collective strike actions” of the flying crew. And yet indications from different sources strongly suggested that they were indeed staging a coordinated action.

The “strike actions” in China Eastern Airlines had two remarkable characteristics worth taking note of. Firstly the crews had not informed the employer i.e. China Eastern, before they took action. Secondly, they went on strike while they were working. Related laws in most countries ban such recourses to industrial action because that takes the cards away from the hands of the employer in the negotiation, not to mention the directly affecting passengers in the course of the actions and the negative impact caused to them which can hardly be remedied.

The crews’ actions were later criticised and they were accused of haijacking the passengers which is not un-true in a certain sense. However further analysis of the incident shows that perhaps the most important factor that compelled the crews to defend their rights by “breaking the law” was that they had been long deprived of the legal right to strike. Just as the right to silence is the last political right of a citizen, the right to strike is the last resort and right of workers. Whether they are worker aristocrats such as pilots or they are mere migrant workers, as long as they cannot enjoy the right to strike, they are left only with the choice between submission and resistance when confronted with their employer [strict translation: ‘when confronted with capital’].  Neither option is beneficial to the building of harmonious labour relations.

The escalating number of labour conflicts is an indisputable fact in today’s China. Whether it is the unpaid arrears claims of migrant workers or the strike actions taken by the pilots, they are manifestations of conflicts in the society. The problem is that there is no effective channel to resolve labour disputes in face of the realities in our society. In the free competitive labour market, the employers are in a naturally advantageous position. They enjoy absolute power in controlling the wages, promotion opportunities and employment of workers. On the other hand, as Marx says, workers have “nothing but their hands and freedom”. Under such an unequal relationship, to refuse to work and to do so collectively is the most important and almost the last resort of workers when they are negotiating with their employers. It is exactly because of this reason that most of the laws in the world today are written to include the protection of the right to strike of workers.

More than a century ago, the manufacturing workers in Chicago staged massive strikes to fight for the right to eight hours of work a day and shed their blood in confrontation with the police. The labour movement in the United States and Europe however rolled back drastically in the 20th century. An important reason behind that is the legal recognition of workers’ right to strike which forced both sides to seek resolution within the law when there were labour disputes. This was followed by the development of legal restraints and definition of strike over the years which finally led to enshrining the right to strike on the part of workers as the most important institutional protection to balance the negotiation position of the employers and employees.

Nevertheless it is not easy at all to organise a strike in the United States even today. American laws protect the right of employers to “permanently replace” the striking workers in an industrial action in support of higher benefits. The striking workers must not use violence or cause destruction to the production tools. Moreover the strike leaders must give prior notice to the employers about the start and duration of their action. The leaders and the workers stand to be penalised if they violate these rules. More interestingly, American employers can go on “strike”. They can refuse work to their workers in case of disagreement with the latter’s demands. Employers can “strike” in two ways: The first is lock-out, meaning shutting the gates to stop workers from going to work. The second is “capital strike” which virtually paralyses production. Thanks to these means, most labour disputes in the United States are resolved at the negotiating table. Fewer and fewer disputes have the chance of developing into strike actions. Nowadays in the United States, industrial strikes have become more like a bluff used by the employees in the course of negotiation.

Workers’ right to strike was written into the PRC Constitution in 1975. The stipulation was removed however when the constitution was revised in 1982. Between 1975 and 1982, however, the “right to strike” which is a right that belongs to workers, was brandished merely as a piece of propaganda. And after 1982 it became a legal taboo. However, the reforms and open door policies that were being fostered then aggravated labour conflicts which began escalating to new heights. Deprived of the right to exemption from criminal and civil liability, workers were virtually deprived of the “right to negotiation”. But they were not willing to give up the “right to resistance action”. The result of that is the surge of collective workers’ actions unbound by rules and restrictions. Workers are acting spontaneously to maximise the impact of their moves. The spillover effects of their strike actions are becoming more and more obvious. Apart from the strike by China Eastern Airlines flight crews, earlier on, more than 200 security guards in the largest residential community of Kang Cheng in Shanghai city were collectively absent from work. These are the best footnotes to read about strike actions in China nowadays.

In fact to write strike back into the laws is much less horrifying than many people would think. Allowing freedom to strike would not necessarily result in a massive number of strike actions. On the contrary, putting freedom to strike within the legal framework is beneficial to the development of labour relations towards a rational and normalised direction. In the case of China Eastern Airlines, the horrifying part of the story is not that the crew “refused to fly”, but that they “refused to work” while they were flying, in the absence of any prior notice to the company and the passengers. Should such practices spread further, the flying crews, the airline company and the passengers will all be losers. And worse cases cannot be prevented by prohibitions but through smooth communication channels. From the legal point of view, if one wants to restrain a right, one has to recognise such a right, to start with.

October 2008
IHLO