Criminalisation of the Strike Leaders in Guangdong province
IHLO, 16 Sept 2013
A tightening over the strikes in China is noticed in a number of cases recently and even the governments in Shenzhen and Guangzhou have less tolerance towards the strike leaders. Rather than using collective bargaining for a settlement, the governments seek tougher measures to criminalise the strike leaders.
Migrant worker Wu Guizun has been detained by the public security for more than a hundred days since 22 May and is likely to be criminalized for organizing his fellow workers in a homeware factory in Shenzhen to strike and protest the government. Another twelve security workers of the Guangzhou Hospital were put under criminal detention since 20 August. In both cases, the strike leaders were charged for the criminal offence of “assembling a crowd to disturb public order”.
It is worrying that this is taking place in Guangdong province, a recognizably more open region with more pro-active ACFTUs that promote collective bargaining and direct election of the unions.
(1) Criminal detention of Wu Guizun for more than a hundred days
Wu has worked in Diweixin factory for more than 9 years, earning a monthly wage of USD600. Wu began to promote labour rights consciousness with his fellow workers after an occupational injury. He was elected as one of the worker representatives in the strike in May to handle legal consultation, external communication through the internet and to negotiate with the employer.
On 7 May 2013, three hundred workers in Diweixin (Shenzhen) factory put down their tools and demanded the Taiwanese employer to clarify the factory relocation and compensation. They suspected the employer of relocating the production from the Shenzhen facility to the new plant in Huizhou city without informing the workforce. Since the beginning of the year, machines and materials had been moved to the new plant in Huizhou city and the orders of the Shenzhen plant had been dramatically cut. They asked the employer for termination of the employment contract, their back wages and compensation. Seven workers’ representatives were elected for negotiation with the employer and Wu was one of them.
The negotiation in the first two weeks was not successful as the employer refused to meet the workers’ representatives or give compensation. The workers began a marathon sit-in at the factory while petitioning the Shiyan district and Shenzhen government for intervention. They were dispersed by the police and told to return to work. On 21 May, the employer agreed to compensate the workers’ severance at RMB400 per year of service instead of the legal requirement of one month’s salary per year of service. Without discussing with the workers’ representatives, the striking workers decided to go for a protest at the district government the next day. On 22 May, about 200 workers, including the workers’ representatives and Wu, were arrested by the anti-riot police on the way to the district government office. They were disconnected from communication for a day during the detention. A hundred of them were released after midnight, followed by another 59 of them ten days later. Three worker representatives including Wu were still detained and disconnected. A few days later, the factory management terminated the negotiation with the workers and sacked all the representatives. The strike was called to an end as the intimidated workers were afraid of putting their representatives under greater risk. On 29 June, the other two representatives were released before the 37-day legal maximum period for administrative detention expired but not Wu.
By now Wu is still under detention and he has lost his freedom for more than 100 days without a legal procedure. During the detention, he was deprived of free contact and access to his family and lawyer. His bail-out request was rejected without given a reason. His lawyer has not received any written facts or summon and his family has not been officially notified at all. It is likely that Wu will be officially charged soon for the criminal offence of “assembling a crowd to disturb public order” and the leading offender is liable to three to seven year imprisonment.
(2) Twelve security workers in the Guangzhou hospital were put under criminal detention
On 26 February 2013, nearly two hundred health care workers and the security guards of the First Hospital of Guangzhou University of Chinese Medicine were dismissed by the agency companies without prior notice and severance compensations. These workers had been working in the hospital for nearly twenty years employed under different labour agencies. The latter, which had 20% stake in the companies, were affiliated to the hospital to hire the auxiliary workers. The agency workers received discriminatory wages and did not have overtime compensation, social insurances, paid leave and not even a proper employment contract. They demanded negotiation with the hospital authority to settle their social insurance premiums in arrear and severance compensations. The workers elected their own representatives and began to stage a marathon sit-in at the hospital in mid May. They went to seek the assistance of the provincial and municipal union but failed to get an answer from them.
The hospital authority does not want to settle the huge sized back payment, afraid of a ripple effect. Meanwhile the hospital is planning to out-source the auxiliary work after the revised Labour Contract Law came into effect on 1 July 2013.
In mid August, the health care workers made a difficult decision to call the marathon sit-in to an end when the hospital authority offered to compensate each with RMB20,000. The security guards, employed in a different agency company were not given any settlement. They had less bargaining power to demand the hospital authority for a negotiation. On 19 August, they climbed to the roof top of the hospital and had a clash with the police. Twelve of them were put under criminal detention on 20 August for “assembling a crowed to disturb public order” under the Criminal Law.
Criminalisation of the strike leader
Although strike is not protected in the laws in China, it is not a criminal offence. Freedom of assembly is also protected in the PRC Constitution.
Previously, administrative detention is commonly used for the purpose of dispersing the strike. The detained workers are released within 15 days with no criminal record. The two cases show less toleration for the prolonged strikes. Since the beginning of the year, most of the strikes are involved with capital relocation or agency workers demanding equal remuneration, and the local governments are less financially stable to foot the bill for peaceful remediation.
In China, the public security is allowed to put a person for administrative detention up to 15 days without a court order. After that, the public security should produce the case file, the evidence and the request to the Procuratorate for an official arrest permit. Only when the suspect is involved in gang crimes could the Procuratorate approve an extension of 30 days. The public security has clearly violated the Criminal Procedure Law and keeps Wu under illegal detention without a permit and notification to his lawyer and family.
The district and Shenzhen FTU have kept silence in the labour dispute of Diweixin. They have not said a word when the workers’ representatives were sacked by the employer and detained without a due procedure by the public security. No legal aid or assistance has been to Wu and his family.
In 2011, the Guangzhou Federation of Trade Unions had been pushing for the passing of the regulation on the tripartite negotiation of labour relation for Guangzhou city in lieu of a provincial law on collective bargaining. The law allows the trade unions to pro-actively step in and demand a negotiation with the employer to settle a work stoppage. Workers are also free to request the assistance from the municipal tripartite body to mediate their labour disputes. Yet in the case of the out-sourced workers in Guangzhou hospital, the municipal and the provincial trade union were silent and unable to get the hospital authority to the negotiation table. The tripartite regulation named above had not been used since it was passed in 2010.
ITUC has reported about the suppression of the right to strike, the unfair labour practices of the employers and the local laws contradicting the ILO and UN Declaration in the Universal Periodic Review on China, the annual review of the core labour standards on China this year. The domestic labour organizations in mainland China is mobilizing a signature campaign to ask the ACFTU for support to the detained workers.