Unfair Labour Practices Against the Worker Leaders Go Unchecked in China
IHLO, 4 October 2013
Employers are making use of the double absence of the right to strike and protection against unfair labour practices to penalize the strikers with dismissals or other retaliatory measures . This is commonly found in domestic and foreign invested companies including multinational companies such as Walmart.
Local collective bargaining laws only protect the collective bargaining representatives
The provincial/municipal collective bargaining laws in China only protect the trade union representatives. This is only half of the picture of the reality in of collective bargaining in China styled in the ACFTU model of top-down initiation begun by “doing the education work with the employers” without necessarily involving the workers. Actually the need for collective bargaining is an urgent one amongst workers in the midst of a wild cat strike. In these circumstances, workers elected their representatives, endorsing them to negotiate with the employers to end their industrial actions, or to sign an agreement to improve their working conditions. These are not trade union officers but worker leaders in the labour dispute or strike.
This change should be taken as a good sign of the collective consciousness of workers compared with years ago when the government and the employers were dealing with a crowd on strike without leaders. Workers were afraid of retaliation then. By electing their representatives demanding a negotiation and taking the risks, workers now cast their hopes on the institution of collective bargaining, with or without the ACFTU.
Employers’ rejection to negotiate
There is no national law on collective bargaining. Yet, in a number of the collective negotiation regulations passed by the local governments, workers rather than the official trade union are allowed to initiate a negotiation on wages and other labour standard issues with the employers. The law in Yunnan province allows that as soon as one-fifth of the whole workforce makes a written request to the management or the enterprise trade union. The employers are mandated to give a written reply within fifteen days or so.
The regulation on tripartite negotiation of Guangzhou city provides the most pro-active provisions so far by allowing the tripartite body to mediate an industrial action. Workers can ask the tripartite body to step in for negotiation of a settlement. Trade union officers who have failed in their responsibility are subject to recall or penalty by the upper federation.
Yet, these pro-active provisions have not been effectively enforced by the tripartite body or the trade union. In some cases, the employers are free to reject workers’ request for negotiation which prolong the industrial actions and expose the striking workers to greater risks.
Dismissal of the workers’ representatives
The Labour Law, allowing termination of employment contract for breaking the company rules, disrupting production and absenteeism, is used by the employers to punish the strikers and the worker leaders.
The Italian-owned Ferroli’s branch facility in Heshan city of Guangdong province dismissed the worker leader BU Guolong on 25 February 2013, within less than three hours after he took more than a hundred workers to file a labour arbitration over the outstanding overtime compensations. The workers had staged a strike forcing the management to agree to raise their wages and give them the same bonus just one day before .
This was followed by Walmart which dismissed six workers in its distribution centre in Shenzhen in July 2012 who were taking the lead to collect workers’ demands on wages, overtime compensation and the appraisal system. The worker leaders had warned the management and the enterprise trade union of a possible strike if the management refused to negotiate with them. Instead of a strike, a protest at the workplace was organised on 5 July. The six leaders were dismissed by the management between 6 July and 10 July for violation of the company rules. Rather than taking it as a case of retaliation, the labour arbitration committee of Pingshan district in Shenzhen ruled in August 2012 to support Walmart’s dismissal .
In mid-August, four workers’ representatives out of eight in the negotiation committee they spontaneously formed were dismissed by the employer of the chain restaurant, Gold Hans. In June, 150 store managers took the lead to represent 6000 workers of Gold Hans from different branches to request the employer for compensating the social insurance premiums in arrears and the overtime compensations. Gold Hans had provided social security to only 20% of the workforce, and the new employer which had bought the company had refused to settle the compensation with the workers.
The employer of Pan Hua Jewellery Factory in Guangzhou city fired 19 female workers on 18 September as an act of retaliation. They include three pregnant workers and two other breast-feeding moms who are under the special protection laws against discrimination or unfair dismissal under the Chinese law. These workers were active in demanding wage improvements and the employer had threatened to dismiss them before. On 12 September, the workers demanded a negotiation with the employer to improve their conditions in a written agreement and complained to the local bureau. After receiving three consecutive warning letters from the employer, the nineteen workers were told that they had been dismissed by the company on 18 September. Rather than assisting them in the unfair dismissals, the Guangzhou FTU, the women’s federation and the labour bureau approached by the female workers advised the female workers not to make a fuss but to follow the law and proceed for labour arbitration.
No Unfair Labour Practice in China
Protection against the unfair labour practices of the employers, even as a concept, has not been established in the labour relation and the judicial system in China. The labour bureaus, the judiciary, and even the official trade union have limited awareness or ground to step in to defend workers and their leaders when the employers are taking revenge actions, even though they are not official trade union representatives.
In a similar action against the vocal worker leaders, Walmart Shenzhen went further to dismiss WANG Shishu on 24 July 2012. Wang started to gather the opinions of his colleagues in Shenzhen Xiangmihu store. He went to the street federation of trade unions for support when the workers in the distribution centre were requesting a negotiation with the management in early July . The consolidated demands of the workers with the signatures of 85 workers Wang collected were sent to the Xiangmihu street federation of trade unions which then shared it with the management . Wang was fired later for violating the company rules and damaging the image of the company. The case is still under arbitration and the street federation seemed to be short of means in offering protection to its members except providing legal support to Wang.
There are also limited options in terms of judicial remedies. In a number of cases brought to the labour arbitration committee and the civil court, the judicial rulings are unfavourable to workers since they are not based on unfair dismissal as a punishment to workers for their participation in the labour strikes. The absence of this major principle closes off appropriate remedial and redress measures such as reinstatement of workers. The objective effect it serves is enhanced intimidation and discouragement amongst workers in exercising their right to take industrial actions.
On 21 February 2013, five workers from the US-owned International Paper (Panyu) in Guangzhou city were fired by the management, using the excuse that they were not observing the factory rules in revenge for the leading role they played in the two-day strike on 19 and 20th February. The workers were protesting against the unequal remuneration and annual bonus. The fired workers took the case to labour arbitration. Although the arbitration committee ruled in July that their dismissal was related to the strike and it was illegal, the demand of the workers for an apology from the management and reinstatement was rejected. At the moment, there is no legal basis to mandate the reinstatement of workers and worker representatives when they are penalized by the employers for taking industrial actions in China. Nevertheless, the case of the US-owned International Paper (Panyu) in Guangzhou city could be a point to start.
See ITUC submission for the UPR on China, 2013; and Annual Review of the Core Labour Standards of China, IHLO, 2013.
“A striking worker dismissed by Ferroli in Heshan”, 2013.3.8, Southern Metropolitan Daily
“Representatives of workers found to have violated company rules” , 2013.2.18, Nanfang Daily, http://www.nfgb.com.cn/NewsContent.aspx?id=38764
Wang was said to have been elected by workers into the branch trade union committee of the store he was working in 2006. It was not approved by the management and he stayed as a worker representative.
It is not sure whether the materials were shared by the street federation with the Walmart management during an official collective negotiation or not (Source: “Investigation on the collective actions taken by workers in Shenzhen Walmart”, written by HE Yuanchen, LIU Jiang, 2013.6.21, China Workers, ).