BILINGUAL COURSE ONLABOR & EMPLOYMENT LAW

by Mankui Li

LL B, LLM (Labor), LL M (General), PhD Candidate

Lecturer, School of Economic Law, SWUPL

Visiting Researcher, University of Ottawa, Canada

LESSON 1: INTRODUCTION

HOW FAR DOES CHINA LAG BEHIND INTERNATIONAL STANDARD?

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INTERNATIONAL STANDARD

As for China, international conventions always set up somewhat higher bar.

Chinese government will ratify or not ratify these conventions based on the judgment whether domestic legislation is or can be in conformity with these conventions.

Once ratified, Chinese government will pass certain domestic legislation implementing the requirements set in conventions.

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INTERNATIONAL STANDARD

Universal Declaration of Human Rights; (23,24,25) Two subsequent UN Conventions:

International Covenant on Economic, Social and Cultural Rights; (6,7,8,9)

International Covenant on Civil and Political Rights; Fundamental ILO conventions (Core labor

standards) Right of association and collective bargaining (C87, 98) Abolition of forced labor (C 29, 105) Abolition of child labor (C 138, 182) Equal employment (C 100, 111)

Other ILO conventions 4

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INTERNATIONAL STANDARD

Chinese government ratified International Covenant on Economic, Social and Cultural Rights; (with reservation on right to organize);

Chinese government submitted its Initial Report on implementation in 2003;

Committee on Economic, Social and Cultural Rights reviewed China’s Initial Report in 34th session, and reached concluding observation: Complimenting China on seven areas of

improvement; highlighting 28 principal subjects of concern;

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LABOR RIGHTS IN CHINA Labor rights in China can be analyzed on

three different levels: The right to work; The rights in work: collective

The right to organize; The right to collective bargaining; The right to strike

The rights in work: individual Rights to free choice of employment and equal

employment; Rights to just and equal remuneration; Rights to have vacation, rest; Rights to favorable conditions of work; Rights to vocational training; Rights to social insurance and other benefits

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THE RIGHT TO WORK

Article 23 of Universal Declaration of Human Rights: everyone has the right to work…

Article 6 of International Covenant on Economic, Social and Cultural Rights: member States…recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work …

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THE RIGHT TO WORK

Article 42 of Chinese Constitution: Every citizen of P.R.China has the right (and obligation ) to work.

As elsewhere in the world, the government in China has the duty to provide employment to eligible citizens. This is provided by all sorts of domestic legislation.

But it is more complex than you imagine…

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THE RIGHT TO WORK

Before 1980s (Opening up and Reform): Dualistic Structure of Chinese Society in terms of employment and social security

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THE RIGHT TO WORK

Employment promotion

Employment service Vocational training Employment

insurance

Free land use rights (under public land ownership).

Free land use rights =employment

No unemployment and related benefits

Urban area Rural area

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THE RIGHT TO WORK

Migrant Workers

Things has been slightly changed…

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THE RIGHT TO WORK

Number of migrant workers Year 1990: 15 million; Year 2003: 98 million; Year 2008: more than 200 million; Year 2010-2020: 5.5-6.5 million more each year; Year 2020-2030: 4-5.5 million more each year;

Changes caused by migrant workers Government creates employment opportunities

for migrant workers; example of global recession; For those migrant workers who have participated

in employment insurance for more than one year, they can get some subsidies upon losing the job;

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CONCLUDING OBSERVATIONS

Concluding observation of Committee on Economic, Social and Cultural Rights: “The Committee notes with deep concern the de

facto discrimination against internal migrants in the fields of employment…indirectly result from inter alia, the restrictive national household registration system (hukou)”

“The Committee notes with concern the increasing rate of unemployment in the State party, particularly in rural areas.”

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THE RIGHTS IN WORK: COLLECTIVE Article 8 of International Covenant on

Economic, Social and Cultural Rights: The States Parties … undertake to ensure: The right of everyone to form trade unions and

join the trade union of his choice …(reservation) The right of trade unions to establish national

federations or confederations and the right of the latter to form or join international trade-union organizations;

The right of trade unions to function freely subject to no limitations other than those prescribed by law …;

The right to strike… Ratified in 2001, with reservation on right to

organize;14

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THE RIGHTS IN WORK: COLLECTIVE

Convention 87:Freedom of Association and Protection of the Right to Organize Convention, 1948;(Article 2: join…without previous authorization)

Convention 98: Right to Organize and Collective Bargaining Convention, 1949;

Two of the core labor standards listed by ILO.

Core labor standards are a central plank of decent work.

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RIGHT TO ORGANIZE

China has not ratified these two conventions concerning the right to organize.

Workers in China do have the “right to organize” Trade Union Law 1992 (newly revised in 2001); Labor Code 1994; (its Article 7 reads: “”workers

have the rights to join and organize trade unions. )

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RIGHT TO ORGANIZE However, right to organize in China is different…

If there is no trade union within an establishment, the workers can organize one, and only one;

The creation of new trade unions should be approved by the upper level of trade unions. (see next slide)

If there is already one, the workers can only choose to join or not join this trade union;

Trade union funding: employers’ contribution (2% of its total payroll) + membership fee (0.5% of his wages)+government subsidy;

The trade union officials are workers at the same time (part-time officials are exempted from work duty up to 3 days per month; full-time in large enterprise)

Employer should provide office space and other facilities for trade unions 17

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TRADE UNION IN CHINA

National Industry-level trade unions

Local industry-level

Trade unions

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TRADE UNION IN CHINA

Employers resist unionization for another reason: they have to pay dues to trade unions!

Generally, it is the employer, not the worker can decide to start a trade union.

Trade unions lack due independence from the employers: funding, facilities, staff;

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TRADE UNION IN CHINA

Fortunately, industry-level trade unions are rising…

ACFTU as a quasi-government agency is determined to promote the unionization rate in China, especially among the large transnational companies (Fortune 500: 90% in 2009)

And Walt Mart has been unionized in China!

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THE RIGHT TO COLLECTIVE BARGAINING

Labor Code 1994 (including both individual employment contract and collective bargaining agreement);

Labor Contract Law 2007 (including both individual employment contract and collective bargaining agreement);

Plenty of regulations on collective bargaining, especially collective bargaining on wages.

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THE RIGHT TO COLLECTIVE BARGAINING

Procedure: Parties: trade unions + employers, or

representative elected by workers if no trade union + employers

Negotiation and enter into an agreement (draft); The agreement (draft ) has to be approved by

the workers’ meeting or workers’ representative meeting;

Then the approved agreement has to send to labor department for scrutiny, and will come into force after 15 days if labor department doesn’t veto it.

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THE RIGHT TO COLLECTIVE BARGAINING Collective bargaining in China focuses on

some broad issues, such as, occupational health and safety, working hour, vacation, fringe benefits, etc.

Once collective bargaining agreement comes into force, it’s binding on the employer and all the workers (members and non-members).

Collective bargaining agreement functions as minimum standard for both employer, cannot replace individual employment agreement.

Every worker has to enter into individual employment contract with the employer separately (even there is CBA).

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THE RIGHT TO COLLECTIVE BARGAINING

In China, “labor law” not only covers collective bargaining agreement, but also individual employment contract;

Linguistically, the equivalent of “labor law” in Chinese is “labor and employment law” in Canada and U.S.

Linguistically, “employment contract” in Chinese exist when the employer is a natural person, e.g. in case of domestic service; “employment contract” is treated in the same way as contract in civil law, not covered by “labor law”. 24

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THE RIGHT TO STRIKE

Strike is NOT explicitly provided by China’s domestic legislation, though China doesn’t

explicitly impose a ban on it.

The issue of strike has been mentioned and discussed quite frequently among legal scholars.

Unfortunately, they tend to mistake any sort of work stoppage as strike. 25

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CONCLUDING OBSERVATIONS

Concluding observation by Committee on Economic, Social and Cultural Rights: “The Committee regrets the State party’s

prohibition of the right to organize and join independent trade unions in the State party.”

The prohibition on the right to strike violates China’s obligation under international convention.

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THE RIGHTS IN WORK: INDIVIDUAL Article 7 of International Covenant on Economic, Social

and Cultural Rights: …recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: Remuneration which provides all workers, as a minimum,

with: Fair wages and equal remuneration for work of equal

value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

A decent living for themselves and their families in accordance with the provisions of the present Covenant;

Safe and healthy working conditions; Equal opportunity for everyone to be promoted in his

employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays

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RIGHTS IN WORK: INDIVIDUAL

Rights provided in Labor Code in China: Rights to free choice of employment (no forced

labor) Rights to equal employment (anti-discrimination) Rights to equal remuneration; Rights to rest, vacation; Rights to vocational training; Rights to favorable conditions of work;

These rights are guaranteed by domestic legislation. In this respect, China is in conformity with its international obligations.

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CONCLUDING OBSERVATIONS

Concluding observation of Committee on Economic, Social and Cultural Rights: “The Committee is deeply concerned about the

insufficient implementation of existing labour legislation…that has resulted in generally poor conditions of work, including excessive working hours, lack of sufficient rest breaks and hazardous working conditions.”

“The Committee is also alarmed by the high incidence of serious occupational accidents … particularly in the mining sector.”

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