Labour News

HKCTU Solidarity with Korean railway workers

24

Dec 2013

 

Supporting the Korean railway workers’ right to strike against privatization;

Calling on the Korean Government to stop persecuting trade unions and release all arrested unionists!

 

On December 24, representatives from HKCTU and labour organizations (AMRC, Globalization Monitor, AMCB, IMW-HK) staged a demonstration at the Korean Consulate-General in Hong Kong, to protest against the Korean Government's recent suppression of the strike of Korean Railway Workers’ Union (KRWU) and arrest of unionists. The Korean Consulate refused to take the protest letter at first and the vice Consulate pushed one protester from HKCTU backward when they tried to put the letter at the door.

The KRWU had been striking since December 9 to fight against the government’s proposal to privatize the Korean rail company Korail. Yet instead of respecting the strike, on December 22, the Korean government sent hundreds of riot police to raid the Korean Confederation of Trade Unions (KCTU)'s headquarters in Seoul, injuring hundreds due to the use of pepper spray and violence. 130 people including strikers, union leaders and supporters, were arrested.

HKCTU supported the KRWU’s strike against the privatization of the national railway. Korail had planned to set up a new subsidiary for bullet train operations, KTX, in which would take a 41% share, with the rest of funds only purchasable by public corporations. The KRWU pointed out that creating a new subsidiary was a move towards privatization and did not believe the verbal promise of the government not to privatize. The struggle of the railway workers was to protect both their labour rights and the public interest. In many cases of privatization of public services, whether in Hong Kong or other countries, only big corporations benefit, while the employees and general public suffer from deterioration of working conditions and rise in service charges. International Trade Union Confederation (ITUC) and International Transport Federation (ITF) also strongly supported the strike of the Korean railway employees.

Since the beginning of the strike, the Korean government and Korail have not shown willingness to negotiate with the employees in good faith. On the contrary, the government and Korail management applied various tactics to persecute the strikers, including accusing them of an illegal strike and replacing the striking employees with temporary workers, which would undermine safety standards of the railway operation. Korail has filed a damages lawsuit worth 7.7 billion won against the union and its 186 leaders. HKCTU criticized the Korean government’s action as a grave violation of the right to strike. More shockingly, hundreds of riot police raided the KCTU's headquarters in Seoul on December 22, injuring hundreds. According to the information of KCTU, 130 unionists including the leaders of KRWU, KCTU and supporters were arrested in this attack. These suppressions were serious violations of union rights and human rights. The international unions (ITUC and ITF) also have strongly condemned the Korean government’s anti-union behaviour which runs contrary to its obligations under the ILO and to the labour standards in its trade agreements with the US and the EU.

 

HKCTU has the following demands for the Korean Government:

1.    Immediately release all of arrested unionists

2.    Stop persecution of trade unions and of the strike of KRWU

3.    Enter into talks with KRWU about restructuring and stop privatization of the Railway

Worker safety concerns linger 20 years after Shenzhen factory fire

19

Nov 2013

 

Reported by Lin Jing for RFA's Cantonese Service. Translated and written in English by Luisetta Mudie.

Post from Radio Free Asia: http://www.rfa.org/english/news/china/fire-11192013132650.html

 

Two decades after a fire at a toy factory in southern China's Shenzhen killed 87 workers, most of them young women, Hong Kong activists and survivors have hit out at the continuing failure of China's employers to protect their workers from death and injury in the workplace.

As activists in Hong Kong marked the anniversary of the Zhili Handicrafts Factory fire on Tuesday with a march calling for better safety conditions, survivor Sun Chengyun told RFA's Cantonese Service that her life had been blighted by the tragedy.

 

"I suffered 50 percent burns all over my body," said Sun, a former worker at the factory, which had breached safety regulations. "Whenever this comes up, I feel so downhearted."

"Ever since then, I have just been at home doing nothing, because I don't want other people to see the scars on my body," Sun said.

"My whole left hand has been crippled out of shape, and my left leg and arm and back are scarred," she said.

Sun said the Chinese authorities had boosted fire safety features in factories since the Zhili fire shocked the world and caused a public outcry over the treatment of rural migrant workers 20 years ago.

"They have fire exits, marked in green, and there are now fire extinguishers on every floor of the dormitory buildings," she said.

"But whether or not they would actually be available when needed is another matter."

 

Breach of safety regulations

In 1993, managers Huang Guoguang and Lao Zhaoquan hired mainly female migrant workers from rural Sichuan and Henan to work in the Hong Kong-owned factory sub-contracted to make toys for the Italian multinational Artsana S.p.A./Chicco, according to the Hong Kong-based China Labour Bulletin (CLB).

The factory had breached safety regulations by combining workers' dormitories, production facilities, and storage in one building, adding bars to the windows and locking fire escape exits to prevent theft, CLB said in a report on the fire.

 

"On Nov. 19, 1993, fire broke out and quickly spread through the building," it said.

"Most of the charred remains of the 87 victims of the fire were piled up in heaps at the locked exits."

A further 47 people were seriously injured in the fire, which hit world headlines and caused widespread public outrage at the blocking of fire exits.

 

Hong Kong march

Hong Kong activists marched to the local offices of the International Toy Manufacturers' Association to mark the anniversary of the Zhili fire and to call for better safety standards among its member factories in China.

Suki Chung, executive director of the Hong Kong-based Labor Watch China, said Hong Kong companies were still the world's top exporters of toys, using factories in mainland China.

"A large number of Hong Kong-invested toy factories are involved in occupational injuries and deaths," Chung said on Tuesday. "There are at least 200 cases of poisoning every year, which take place particularly in the Pearl River delta region."

"Many of those never receive compensation," she said.

 

Workplace accidents

In 2006, government figures revealed that around 700,000 people become disabled annually in China as the result of a workplace accident, Chung's group reported on its website.

She said many factories were able to receive safety certificates through corrupt channels, and that certification was no guarantee that effective safety measures were in place.

"This says nothing about their safety status, and the bigger factories all have poor safety practices," she said.

"We are calling on the Toy Manufacturers' Association to liaise with factories to make public details of their safety licensing procedures," Chung said.

An official who answered the phone at the Shenzhen municipal labor bureau declined to comment on the avoidance of workplace safety standards by factory owners in southern China.

"I don't know. We have no information about this at all," the employee said.

 

 

 

 

HK trade unions and labour NGOs solidarity with the striking workers in ASM Pacific Shenzhen Yantian

06

Nov 2013

 

On the morning of November 6th, a congregation of about 20 people from various labour organizations in Hong Kong petitioned at the headquarter of the ASM Pacific Technology Ltd., demanding the company to negotiate with the workers’ representatives from ASM Micro Electronic Technology Factory in regarding the compensation arrangements of the factory relocation and the occupational safety situation.  The Vice President of ASM Pacific Mr. Lo Chan Sum received the petition and pledge to: (a) the company will clarify to the workers in Yantian regarding plant relocation arrangements and severance payment will be paid to the workers in accordance to the law; (2) the company is also willing to negotiate with the 16 elected workers’ representatives, and will take the initiative to contact them.

We will continue to pay close attention to the above industrial action in the ASM Pacific Technology Ltd. at Shenzhen Yantian District.  Since last Thursday, more than 5,000 workers went on strike for more than one week.  We have learned that the Shenzhen Municipal Government had intervened, and we would like to urge the company to promptly respond to the three reasonable and legitimate demands proposed by the workers.

 

Compensation Issues Raised by Plant Relocation

The strike was set off due to the relocation of production line from Shenzhen to Huizhou as proposed by ASM Micro Electronic Technology.  The workers would like the employers to "buyout their contracts” before deciding whether to accept the re-employment in Huizhou. The relocation of plant raised issues on compensation, including financial compensation, severance fees etc.  However, the company has yet to reveal details on whether the main production line will be moved to Huizhou.  Therefore, we hope that the ASM Pacific Technology Ltd., as the parent company of ASM Micro Electronic Technology, to respond positively to the demands of workers.  Meanwhile, we would also like to request the ASM Pacific to reveal detailed arrangements on positional transfer and dismissal with regards to the relocation. We strongly urge the employers to respect the demands of the workers, and offer reasonable compensation to all the workers who do not want to move to Huizhiu, including severance payment with regard to seniority.

 

Occupational Poisoning Compensation

In addition, there are serious issues concerning occupational health and safety in the plant. We understand there are at least two cases of leukaemia caused by occupational benzene poisoning occurred in the Yantian Factory.  Earlier, a Hong Konglabour organization assisted the worker who diagnosed occupational benzene poisoning in 2009 and successfully fought for occupational illness compensation. At the meantime, the number of workers who diagnosed with occupational benzene poisoning is also on the rise, this is mainly due to the factory uses benzene or other toxic and harmful substances in the production process.  In addition to occupational injury and illness cases, a significant number of workers suffer physical strain, which can not be legitimately categorized as occupational injuries.  Therefore, we urge the employer to compensate workers suffer from occupational poisoning, and properly handle workers with physical strain.

 

Recognize the Legitimacy of the Elected Trade Unions and Immediately Commence Negotiations with Elected Representatives

As a matter of fact, the ASM Micro Electronic Technology does have a trade union.  However, this union is not able to fully represent the interests of grass-root workers.  When the news of the production line relocation first broke out, many workers decided to join the union and demanded for a re-election of leadership.  Before the election, workers' representatives from the plant met with the officials from the ACFTU’s Yantian Branch, and gained their consent on the re-election.  However, the ACFTU later refused to recognize the 16 representatives elected by the workers. Subsequently, these elected workers' representatives were unable to take office and legitimately represent the workers in the negotiation.  Thus, we demand the employer to recognize the legitimacy of the elected trade unions and their representatives and immediately commence negotiations on compensation issues.  Indeed, we also demand that no reprisal will be acted upon the representatives from the employers and the ACFTU in the future.

 

Labour Action China

Hong Kong Confederation of Trade Unions

Guilty as a striker? Over 120 days of arbitrary detention for defending workers’ rights: Wu Guijun

31

Oct 2013

 

On the eve of Mid-Autumn Festival (17 September 2013), an academic Wang Songjiang wrote at his mini-blog, “tomorrow will be Mid-Autumn Festival, it is also the 121th day since Wu Guijun, a worker from Diweixin Product Factory of Shenzhen city has lost his freedom. Wu was elected by workers to negotiate with the employer and was detained by the police on 23 May. Until now, he has not been released, neither his family has been told what charge he would face, nor any formal arrest warrant has been issued. Such a practice completely violates the existing legislation and is a brutal deprivation of a citizen's personal liberty.” Wang's post was shared by some 6,000 bloggers and become one of the most popular mini-blogs that day. In this quarterly, the China Labour Rights' Team of the HKCTU is feathering Wu Guijun's case, through materials gathered from the internet and interviews with labour organizers in China, to investigate the background of his detention.

 

Missing compensation at factory closure

Diweixin Product Factory is a Hong Kong-owned furniture factory. According to the Mainland Chinese media, the employer has been secretly moving its machinery away from its Shenzhen factory. When the workers learned that the order would drop dramatically from May onwards, out of desperation, they staged a strike, guarded the machinery from being relocated, demanded the employer to explain the relocation and to compensate workers. Article 46 of the Labour Contract Law of China has stated that “The Employer shall pay the employee financial compensation in the circumstance that the business is closed down. ” The financial compensation should be based on the number of years s/he has worked for the employer at the rate of one month’s wages (average wage for the 12 months prior to termination of labor contract) for each full year worked.

 

From strike and detention

 

Almost all 300 workers from Diweixin Product Factory took part in the strike. Wu Guijun was elected by the workers as their chief negotiator. Yet, the negotiation did not work out. The employer was unwilling to pay financial compensation and having lawyers to negotiate, instead of meeting the workers himself. The workers felt that they had been ignored and disrespected. Some outrageous workers even blocked the road after the first day of negotiation, a common tactic of Chinese workers to express their discontents. Other workers sought help from the trade union and other authorities. Wu himself did not join the road blockage, nor did he visit the Government, he chose to stay in the factory.

Due to the lack of freedom of expression and media censorship, the strike was not being reported by mainstream media, Wu's task was to spread and update the news of strike at a mini-blog. After his detention, a new blog of “workers of Diweixin” was rebuilt, to document the strike, its aftermath and Wu's detention.

During the two-week strike, workers have continuously demanded the Government and the ACFTU to step in, and went twice to the Longhua District Government to petition. Yet, the final offer from the employer was to compensate them 400 Yuan for each year of service. This offer is far below the legal requirement, i.e. the number of years s/he has worked for the employer at the rate of one month’s wages (average wage for the 12 months prior to termination of labor contract) for each full year worked. The average monthly wages of the Diweixin workers was 2,700 Yuan. Therefore, the workers turned down the offer and went on protesting.

An informant reflected, “Wu Guijun was reluctant to launch the third protest, yet, most of the strikers did not want to wait anymore. In the afternoon of 23 May, without informing the workers' representatives, some 200 workers launched the third protest. Wu could not stop them and went along, but tried to persuade them to return. On their way to protest, all workers were stopped and detained by the riot police.” Most workers were released on the next day, about 20 workers received administrative detention for 13 days. Yet, Wu Guijun, another workers' representative and a female worker were under special criminal detention, which implied that they would be charged for criminal offenses.

A few days later, the factory put out a notice, to formally dismiss all workers' representatives, canceled all negotiation and made the compensation offer at 400 Yuan per year of service. Worrying that their resistance would harm their fellow workers at the detention centre, the workers ended their strike and terminate their labour relations with the enterprise, hoping that it would speed up the release of the workers. Two of them were released after 37 days, to be on bail while awaiting trial. Yet, Wu continued to be detained and nobody knows about his fate.

In early September, workers re-set up a mini-blog “Diweixin at rebirth” and released the news that the Shenzhen City Baoan District's Procuratorate would charge Wu for “gathering a crowd to disturb social order”. To support Wu, workers have written an open letter to the Shenzhen ACFTU, asking it to protect Wu as a trade union is obligated to do. The letter states, “Strike is not unlawful. It is not guilty to strike in order to defend one's legal rights. Yet, we have been treated unfairly, especially Wu Guijun, who joined our strike together with some 300 members. We are concerned that once Wu is sued, it would send a dangerous signal to workers, that their chance of being prosecuted would go up if they join a strike. It would only worsen the social conflicts and harm the social harmony”.

Wu has been detained for more than 100 days and no formal notification has been delivered to his family. They wrote an open letter to the Shenzhen City Government, “Wu has a 70 years-old mother, his two kids are still studying. It is unbearable for his family not receiving any notice of trial, not knowing his whereabouts and his situation. He is simply a migrant worker who tries to defend his rights, how wrong can he get?” On the eve of Mid-Autumn Festival, his son posted a picture at his mini-blog, it reads “Dad, I wish you could return, I wish for our reunion at Mid-Autumn.”

 

Photo of Wu Guijun's son

 

His fellow workers also took photos to show their support, stating “strike is not unlawful, release Wu Guijun!” Others from different places also joined their action.

 

Photo of Diweixin workers

 

Photo of solidarity action in Hong Kong

 

Photo of solidarity action of IUF

 

Globalization Monitor and Asia Monitor Resource Centre have launched an online campaign, to demand the relevant authorities in Shenzhen City:

1)        to safeguard the workers' right to strike,

2)        to protect workers' representatives of the strikers,

3)        to support Wu Guijun and his family, intervene to drop the criminal charge against him and release him immediately.

 

Link to the online campaign: https://docs.google.com/forms/d/1fPLtzBgVYwyrcaPfc9zhwxrtr7Z2VbH2LWYfnwu9V3s/viewform

 

The HKCTU's China Labour Rights Team and other trade union representatives would protest at the Liaison Office of the Central People's Government in Hong Kong on 1 October, to demand for the immediate release of Wu Guijun and other detained labour activists , to condemn the ongoing selective enforcement and the police's abuse of power in repressing independent labour movement and violating core labour rights.

Guangdong Province Regulation on Collective Negotiations and Collective Contracts for Enterprises

31

Oct 2013

(Draft for comments)

 

Chapter I. General Provisions

Chapter II. Collective Negotiation

    Section I. Contents of collective Negotiation

    Section II. Collective Negotiation representatives

    Section III. Procedures of collective Negotiation

Chapter III. Collective Contract

Chapter IV. Collective Negotiations and Collective Contract Dispute Handling

Chapter V. Legal Liabilities

Chapter VI. Supplementary Provisions

 

 

Chapter I. General Provisions

 

Article 1: In order to promote harmonious labor relations, to protect the legal rights and interests of employees and companies, and to create standards of a system of collective negotiations and collective contracts, the following regulations are established in accordance with the Labor Law of the People’s Republic of China, the Labor Contract Law of the People’s Republic of China, and the Trade Union Law of the People’s Republic of China.

 

Article 2: This Regulation is applicable for the enterprises in the administrative jurisdiction of this Province.

 

Article 3: Enterprises shall establish and improve collective negotiation and collective contract systems

Collective negotiation refers to the equal negotiation between employees and enterprises with regard to remuneration, working time, rest and vacation, work health and safety, vocational training, social insurance and welfare, and other matters.

The collective contract refers to the written agreement established between all employees of enterprises and the enterprises with regard to working conditions, remuneration and other matters. It may be categorized as general collective contract, special collective contract, industrial collective contract and regional collective contract.

 

Article 4: Employees and enterprises shall follow the principles of mutual respect, fairness, honesty and equal negotiation in the establishment and implementation of collective negotiation and collective contract.

The collective contract established according to the law shall be legally binding for the enterprises and all the employees.

 

Article 5: Working conditions and remuneration standards described in the labor contract shall not be lower than those described in the collective contract; working conditions and remuneration standards described in the collective contract established in the enterprises shall not be lower than those described in the industrial or regional collective contract in the same areas.

 

Article 6: Government at all levels shall work to strengthen collective negotiations and collective contracts, in order to comprehensively promote a system of negotiations and collective contracts.

The human resource and social security authorities at the County level or above shall supervise the establishment and implementation of collective contracts according to law, and review the collective contracts.

The local federations of trade unions shall organize, guide and supervise unions in enterprises to conduct collective negotiation, establish and implement collective contracts.

Enterprises’ associations, industrial and commerce associations and other employers’ organizations and business administrative agencies shall guide enterprises to practice social responsibility, direct and assist enterprises in establishing and improving collective negotiation and collective contract systems.

 

 

Chapter II.Collective Negotiation

 

Section I. Contents of Collective Negotiation

 

Article 7:Employees may undertake collective negotiation and establish a collective contract with enterprises with regard to one or several of the following items:

1.Remuneration;

2.Working time;

3.Work holidays and vacation;

4.Occupational health and safety;

5.Social security payment and benefits;

6.Special protection of women workers and minor workers;

7.Rights and protection of temporary agency workers;

8.Vocational education and training;

9.Labor contract management;

10.Rewards and sanctions;

11.Reduction in workforce;

12.Duration of the collective contract;

13.Procedures for the change or termination of the collective contract;

14.Mediation and settlement of disputes in the implementation of the collective contract;

15.Liability for the violation of the collective contract;

16.Other matters that both Parties mutually agree to negotiate;

 

Article 8: The collective wage negotiation refers to the collective negotiation between employees and enterprises with regard to the pay distribution systems and methods of wage distribution, wage levels in the enterprise, and other items.

Generally, the collective wage negotiation shall be held once a year and both parties may negotiate over one or several of the following items:

1.Wage distribution system and wage standards;

2.Wage payment method and time;

3.Annual total wage and average pay level of employees;

4.Wage rates and methods of adjustment;

5.Allowance and subsidy levels, bonus distribution method;

6.Wage during the probation period, sick leave and leaves of absence;

7.Duration of collective wage contract, procedures for the change and termination of collective wage contract;

8.Condition for the termination of collective wage contract;

9.Liability for the violation of collective wage contract;

10.Other mutually agreed upon wage-related items.

 

Article 9: The collective wage negotiation shall be in accordance with laws and regulations, taking into consideration the following factors:

1.Labor productivity and economic performance of the enterprise;

2.Total payroll and employees’ average wage level in the enterprise in the preceding year;

3.Wage guideline for enterprises issued by human resource and social security authorities, and labor market wage level;

4.Consumer Price Index for urban residents as issued by local statistics bureaus;

5.Local minimum wage, regional and industrial average wage levels as issued by relevant government authorities;

6.Other matters related to collective wage negotiation.

 

Article 10: Employees or enterprises may request negotiation on wage adjustment on any of the following occasions:

1.Change in labor productivity or economic performance of the enterprises;

2.Persistent and substantial change in the local Consumer Price Index for urban residents;

3.Change in the wage guidelines as issued by the local government.

 

Article 11: Industry trade unions and regional trade unions can conduct collective negotiations and sign industrial and regional collective contracts with organizations representing employers, such as employers’ associations, associations of industry and commerce, trade associations, or business associations.

 

Article 12: The industrial and regional collective contract established according to law shall be legally binding to the enterprises and employees in the same industries and regions.

 

Article 13: Industry-wide collective negotiation and contracts may be initiated and established with regard to the following matters bearing direct interests of the employees in the industry:

1.Minimum wage standards of the industry;

2.Rate of wage adjustment in the industry;

Performance standards for similar kinds of work in the industry;

3.Occupational health and safety standards for all jobs in the industry;

4.Staff training policies for all jobs in the industry;

5.Special protection of women workers and minor workers, and the protection of temporary agency workers’ rights and interests in the industry;

6.Other matters appropriate to industrial collective negotiation.

 

Article 14: Regional collective negotiation and contract may be initiated and established with regard to the following matters bearing direct interests of the employees in the region:

1.Minimum wage standards of the region;

2.Rate of wage adjustment of the region;

3.Occupational health and safety standards in the region;

4.Special protection of women workers and minor workers, and the protection of temporary agency workers’ rights and interests in the region.

5.Other matters appropriate to regional collective negotiation.

 

Section II. Collective Negotiation Representatives

 

Article 15: The collective negotiation representatives (representatives hereafter) refer to the individuals elected according to legal procedures and authorized with the right to represent the interests of their own Party in the collective negotiation.

Each party shall have 3-9 representatives and appoint a chief representative. Both Parties may also have a certain number of observer representatives.

 

Article 16: The chief representative for the enterprise shall be the legal representative of the enterprise or any person authorized in written form by the legal representative of the enterprise. Other representatives shall be designated by the legal representative of the enterprise.

In companies with an established trade union, the chief representative for the employees shall be Chairman of the trade union or any person authorized by the Chairman in writing. The rest of the representatives shall be selected either by the trade union or democratically elected by the workers’ congress. In companies without a trade union, or where there is no functioning trade union, the representatives for the employees shall be democratically elected by the employees under the guidance of the local federation of trade unions. The chief representative shall be elected by all the collective negotiation representatives. If, due to exceptional circumstances, the representatives cannot be democratically elected, the representatives and the chief representative shall be selected by the employees under the guidance of the local federation of trade unions. The number of elected representatives may be more than that of representatives participating in the collective negotiation as appropriate to provide alternative candidates when needed.

In enterprises with relatively large numbers of female workers, there shall be an appropriate proportion of female representatives on the employees’ side.

 

Article 17: In industrial or regional collective negotiation, representatives of the enterprises shall be appointed by the enterprises’ organizations in the industries or regions. The chief representatives shall be the leaders of the enterprises’ organizations. When there are several representative organizations at the industry or the regional level, the chief negotiation representative and other negotiation representatives will be elected through democratic procedures. When there are no representative organizations at the industry or the regional level, companies shall democratically elect chief a negotiation representative and other negotiation enterprises.

The representatives on the employees’ side are selected by the industry level or area trade union. The chief negotiation representative is the chairperson of the industry level or area trade union. When there is no established industrial or area trade union, the local federation of trade unions can assume the task of conducting collective negotiations, or the chief negotiation representative and other negotiation representatives can be democratically elected among enterprise union chairpersons in the industry or regions.

 

Article 18: The chief representatives of each side may authorize in written form experts from outside the company as their negotiation representatives. The number of authorized representatives shall not exceed 1/3 of negotiation representatives of each party.

The chief representatives shall not be from outside of the company. Company’s negotiation representatives shall not be the employees’ negotiation representative.

 

Article 19: The dismissal and replacement of representatives shall follow the same procedures as the appointment of representatives. The representatives of the opposite Party shall be informed in written form.

When enterprise unions do not fulfill their responsibilities according to the law, the local trade union shall order the enterprise union to correct its behavior. When enterprise union chairpersons do not represent employees in fulfilling their responsibilities of conducting collective negotiations or have difficulties in fulfilling such tasks, on  the demand of more than one third of employees or representatives of the employees’ representative congress  to change the employees’ chief negotiation representatives in collective negotiations, the local trade union shall guide the employees to hold an employees’ representative congress and re-elect the chief representatives.

 

Article 20: The representatives’ term of office shall be determined by the Party being represented. In the absence of other specific stipulations, the term shall end when the collective contract agreed upon through collective negotiation expires. When the collective negotiation does not result in an agreement or a collective contract is not signed, the term ends with the end of the collective negotiation.

 

Article 21: During the representatives’ term of office, the enterprises shall not unilaterally change their posts, discharge or demote them, deduct their wages or welfare.

In the case that the labour contract of the representatives expires during their term of office, it shall be extended until the termination of the term of office. Except under the conditions cited in Article 39 of the Labor Contract Law of the People’s Republic of China, the company shall not terminate labor contracts of negotiation representatives during the period they perform their duties.

 

Article 22: The responsibilities of the representatives include:

1.To participate in the collective negotiation meetings;

2.To collect, keep and provide the materials and documents related to the collective negotiation;

3.To listen and collect opinions, and to accept questions from the individuals of the party they represent;

4.To represent their party in the settlement of labour contract disputes;

5.Others as described by the laws and regulations.

 

Article 23: Negotiation representatives have the right to request documents related to subjects of negotiation, including registration information, constitutions, financial and accounting reports, work performance standards, payment of wages, tax and social insurance fees. However, materials involving national security or technology secrets are excluded.

Negotiation representatives shall keep confidential any business secrets of the company, of which they have obtained knowledge during the course of collective negotiations.

 

Article 24: The enterprises shall allow the necessary working conditions and time for the representatives to perform their duties.

The representatives’ participation in the collective negotiation and their due preparation for the collective negotiation shall be regarded as normal work, and their wages and welfare shall not be affected.

 

Section III. Procedures of Collective Negotiation

 

Article 25: Employees and the company have the right to request that negotiations be conducted.

When employees or the company request negotiations in written form, the other side must provide a written response within 20 days, providing specific comments to each of the topics. The bargaining proposal must include time, place and content of negotiations.

 

Article 26: The trade union delegates of a company can request the company to enter into collective negotiations.

Employees may direct their request for collective negotiations to the company trade union.  The company trade union shall decide the concrete content and timeframe of negotiations according to the suggestions of the employees and propose collective negotiations to the company; if more than one third of the employees or the trade union delegates request negotiations, the trade union must propose collective negotiations to the company.

If a properly functioning trade union does not exist in the company, the upper-level trade union can advance the employees’ request to the employer. If more than one third of the employees or the trade union delegates request negotiations, the upper-level trade union must propose negotiations to the employer.

 

Article 27: Collective negotiations must be started not later than 60 days after the request for negotiations has been formally issued. Under exceptional circumstances both parties can agree to extend this term by 15 days.

 

Article 28: Collective negotiations are normally conducted by direct consultations. By mutual agreement, negotiations can also be conducted in written or by other methods.

 

Article 29: When collective negotiations are conducted by direct consultation, the chief delegates of both parties chair the negotiations by turns or jointly, or upon mutual agreement, both parties may also determine a third-party chairperson.

The minutes of collective negotiation meetings shall be signed and confirmed by all the representatives present.

 

Article 30: During the collective negotiation, the enterprises shall not:

1. Refuse or purposefully delay collective negotiations;

2. Restrict or interfere with activities of the employees’ delegates, or refuse to permit employees to perform the duties of negotiation delegates;

3. Deny or impede an employees’ access to the workplace, refuse to provide tools or other means of work to employees;

4. Restrict or interfere with trade union activities;

5. Refuse to provide data necessary for collective negotiations or provide false information;

6. Violate, arbitrarily change, or terminate employee delegates’ labor contracts;

7. Refuse to carry out arbitration;

8. Other hostile actions

9. The enterprises are prohibited from threatening, intimidating, cajoling, restricting personal freedom, bullying or assaulting the representatives for the side of employees.

 

Article 31: During times of collective negotiations the employees must not engage in the following activities:

1. Work stoppages or slow-downs which impede the orderly conduct of negotiations or intended to change or re-open existing collective contracts during the time of their duration;

2. produce and arbitrarily disseminate false information, and incite, organize, provoke, assemble, intimidate, or force other employees to participate in a work stoppage or slow-down;

3. destroy the company’s equipment or tools, or interrupt and block the company’s regular production procedures;

4. block, bar or seal off access to the company’s premises, obstruct employees, raw and semi-finished materials, and merchandise from entering or exiting the company’s premises;

5. threaten, intimidate or bribe the other party’s negotiation representatives;

6. restrict the personal liberty of management representatives and insult, intimidate, threaten or physically harm management personnel;

7. interfere with, petition against, or direct work stoppages against mediation procedures agreed upon by both parties;

8. other offensive activities.

In accordance with the Labor Contract Law the company can terminate the labor contracts of employees who engage in aforementioned behavior, seriously violate company regulations, seriously neglect work duties, practice graft, or otherwise create major harm or damage to the company.

 

Article 32: The company must pay employees their regular wages and salaries when they engage in their legal duties as negotiation delegates or take part in negotiation during regular working hours.

The enterprise shall not pay the wages for the employees participating in work stoppage or sabotage during the collective negotiation.

 

Article 33: When agreement is reached in collective negotiation, the chief delegates of both parties will sign the draft collective agreement. When consent cannot be reached or previously unanticipated issues arise during the process of negotiation, the two parties can agree to suspend negotiations. The two parties must determine the duration of the suspension, and the time, location and content for resuming negotiation.

 

Article 34: When a work stoppage or slowdown occurs in a company, the trade union should represent the employees vis-a-vis the company or other concerned parties, reflecting the opinions and demands of the employees and putting forward suggestions to solve the conflict. Reasonable demands on the part of the employees should be accepted by the company. The trade unions shall assist the enterprises in restoring production and work order.

 

 

Chapter III Collective Contract

 

Article 35: Mutually-agreed upon draft collective contracts shall be discussed by the employees’ representative congress. Negotiation representatives on the employees’ side shall report to the employee’s representative congress on the process of negotiation and the content of the draft collective contract.

When the draft collective contract is discussed at the congress of employee representatives, more than two thirds of employees must be present. The draft is considered ratified with the consent of more than half of employees present.

The industrial or regional collective contract draft may be passed based on the deliberation or vote of the industrial or regional employees’ congress or other democratic procedures.

When the collective contract draft is not passed, representatives of both parties shall resume the negotiation and revise the draft.

 

Article 36: Once the collective contract draft has been ratified, it shall be signed by the chief representatives of negotiation parties.

 

Article 37: After a collective contract has been signed, the company shall submit three copies of the collective contract and explanations of the text to the Human Resource and Social Security bureau within 10 days. The following documents shall also be submitted:

1.The collective contract signed by the chief negotiation representatives of both parties;

2.Proof of the legal qualifications of the negotiation representatives of both parties;

3.Minutes of the collective negotiation meetings;

4.Resolutions of the employees’ congress with regard to the deliberation and adoption of the collective contract draft;

5.Other materials as the human resource and social security authorities may deem necessary to submit;

 

Article 38: The human resource and social security authorities shall check the collective contract submitted, to verify the legitimacy of the following items:

1.Whether the negotiation representatives meet the qualifications according to laws, regulations and provisions;

2.Whether the negotiation representatives meet the qualifications according to laws, regulations and provisions;

3.Whether the content of collective contract violates legal regulations.

 

Article 39: The collective contract comes into effect if the human resource and social security authorities have no objection within 15 days after receipt of the contract.

If the Human Resource and Social Security department rejects the collective contract, the signing parties shall, within 15 days, revise or provide further explanations regarding the clauses rejected by the Human Resource and Social Security department. The revision or explanation shall be resubmitted to the Human Resource and Social Security department for review.

The company shall make the collective contract available to all employees within 10 days after the collective contract begins to take effect, and inform the local trade union.

 

Article 40: The collective contract shall be implemented by both parties, and the supervision and regular inspection systems shall be established accordingly.

 

Article 41: The term of the collective contract may be from one to three years. Collective contracts automatically end on the expiration date or when mutually-agreed conditions of termination occur.

The term of the collective contract may be from one to three years. Collective contracts automatically end on the expiration date or when mutually-agreed conditions of termination occur.

 

Article 42: The collective contract remains effective if during the term of collective contract the company changes its name, legal representative, principal etc.

 

Article 43: The collective contract may be changed or terminated under one of the following conditions:

1. If it is agreed by both Parties;

2. A part of or the collective contract cannot be fulfilled due to force majeure;

3. The company is bankrupt, out of operation, split up, or taken over, so that the collective contract cannot be fulfilled;

D. Other situations according to laws and regulations.

 

Article 44: If one side of the collective contract requests negotiations regarding the fulfillment or change of the collective contract, the other side shall reply. Within seven days both parties shall begin negotiations.

 

Article 45: Changes or termination of a collective contract shall be mutually agreed upon through negotiation.

Changes or termination of a collective contract shall follow the procedures of collective negotiations and of signing a collective contract, as stipulated in this regulation.

 

 

Chapter IV Settlement of Collect Negotiation and Collective Contract Disputes

 

Article 46: If disputes occur during collective negotiations and the two parties cannot continue negotiations or reach agreement, the human resource and social security authorities, the relevant government departments in charge of enterprises and the government departments with jurisdiction over the disputed items together with local trade unions and employers’ associations shall make a timely intervention to guide and regulate the company and employees to continue negotiations. Said parties shall also assist the company to keep normal production order, prevent intensification of the conflict, and maintain the harmony and stability of labor relations.

 

Article 47: If the two parties cannot reach an agreement, and remain in disputes over the collective negotiations, the parties can apply for mediation or conciliation in written form to the local human resource and social security authorities.

 

Article 48: The human resource and social security authorities shall make the decision to mediate or not within 10 working days on the receipt of the mediation request.

If the human resource and social security authorities decide to conduct mediation, it shall organize tripartite labor relations actors - such as local trade unions and employers’ associations at the same level - in a timely manner, in order to appoint staff to conduct mediation from the group of collective negotiation mediators. People’s governments at all levels shall set up a group of collective negotiation mediators who can take charge of mediating collective negotiation-related disputes. Necessary expenditures of the group shall be included in the financial budget of the same level. Mediators, while conducting mediations, have the right to enter the workplace, to consult with the company, trade union, and employees about conditions regarding collective negotiations, and to conduct mediations. Relevant units and individuals shall cooperate and provide proper information.

The mediation of collective negotiation disputes shall be concluded within 30 days; the term of mediation may be extended as appropriate for no more than 15 days.

 

Article 49: After reaching agreement through mediation, the mediators will draft the mediation agreement for collective negotiation.

The mediation agreement for collective negotiation shall state the content of negotiations and its period of validity. The agreement takes effect after the chief negotiation representatives and negotiation representatives of both sides sign it. The company and employees most obey and execute the mediation agreement for collective negotiation during the period of validity.

 

Article 50: Before the mediation, or the mediation does not reach any agreement, the enterprises and the employees may jointly lodge the conciliation request to the local human resource and social security authorities. The request shall be made together with the written pledge to accept and implement the decisions of the conciliation committees.

 

Article 51: The human resource and social security authorities shall start the conciliation within five working days on receipt of the conciliation request and written pledge.

The human resource and social security authorities shall establish a conciliation committee for collective negotiation-related disputes and complete conciliation within 30 days. The committee shall include the following members:

1. One conciliator appointed by the company and employees respectively. Conciliators are selected by the company and employees from the pool of conciliators for collective negotiation-related disputes.

2. A chief conciliation facilitator assigned by the human resource and social security authorities.

If the company or employees fail to submit the name lists of the appointed conciliators within the time stipulated by the human resource and social security authorities, the human resource and social security authorities may appoint conciliators from the pool..

The government at various levels shall set up a pool of the conciliation facilitators for collective negotiation disputes and disclose to the public the personal information of those facilitators. The pool shall include the personnel from the human resource and social security authorities, personnel recommended by the enterprises’ organizations and the trade unions, and personnel recognized as possessing social reputation and public trust, familiar with the handling of labor relations, and equipped with relevant expertise.

The government at various levels shall subsidize the conciliation facilitators for their work and pay the necessary expenses. The selection, responsibilities, work procedures, subsidies, and code of conduct of the facilitators shall be regulated by the Provincial government.

 

Article 52: The conciliation committee shall investigate and understand the basic conditions of the negotiation representatives in collective wage negotiations, the production and operation of the company, wage levels of employees, the opinions of both parties and other matters The company and employees shall follow the requests of the conciliators to provide accurate information.

 

Article 53: When agreement is reached through conciliation, both parties shall sign the collective contract according to the law, or revise company rules according to the law and decide or change labor contracts and other items.

If no agreement can be achieved between the parties through conciliation, the collective negotiation conciliation committee shall draft a conciliation agreement within 60 days after receiving the application for conciliation, and present the agreement to both parties. The agreement shall state the period of execution and shall be publicized. The negotiation representatives shall inform employees about the content of the conciliation agreement.  

 

Article 54: When state-owned or state holding enterprises conduct collective negotiations with employees, the upper-level unit in charge shall handle the dispute if both parties cannot reach agreement through negotiations. If this process fails and the dispute case enters the procedures of mediation and conciliation, the unit in charge shall assist the human resource and social security authorities and the conciliation committee to conduct mediation and conciliation.

 

Article 55: For disputes pertaining to the enforcement of the collective contract, trade unions can apply for arbitration or appeal to a court according to the law, if mediation fails.

 

 

Chapter V Legal Liabilities

 

Article 56: If strikes or lockouts occur in public enterprises and institutions, such as water, electricity, gas, public transportation, broadcasting and communication, public sanitation, and hospitals, and related companies, which cause or may cause one of the following consequences, local people’s government departments can announce a cooling-off order according to actual situation, order the company or employees to stop the action, and restore normal order:

1) Harming public security;

2) Undermining the normal social and economic order and the order of residents’ life;

3) Other consequences that seriously threaten public interests.

The local human resource and social security authorities, authorities in charge of the enterprises at the next higher level, local federations of trade unions, and the enterprises’ organizations guides both Parties to conduct collect negotiation and resolve the disputes.

Relevant units and individuals, if refusing to follow the cooling-off order of the local People’s Government and violating public security management regulations, can be punished by police departments.

 

Article 57: If a company violates Article 25 of this regulation, local trade unions at county level and above have the rights to request the company to correct its behavior and to give notice about the company’s behavior to the public.

 

Article 58: If a company violates Articles 30, 48 of this regulation, People’s Governments at the county level and above shall order corrections within a determined period of time.

 

Article 59: If a company violates Article 25 of this regulation, if strikes or slow-downs occur because the company does not reply within the stipulated period of time or refuses negotiation without just cause, the company shall not terminate employees’ labor contracts in cases of employees’ serious violation of enterprise rules; if an employee requests to terminate their individual labor contract, the company shall pay economic compensation according to the law.

 

Article 60: If a company violates Article 30 or an employee violates Article 31 and disobeys public security management regulations, the police department will handle the case according to the law. If crimes have been committed, the violators should be investigated for criminal responsibility according to the law. Employees who agitate, organize, incite, or congregate others to disturb the normal production and operation of the company shall be punished according to Article 23 of the Law of Public Security Administrative Punishments.

 

Article 61: If officers of relevant government departments and trade union staff in carrying out administrative tasks regarding collective negotiations are derelict in their duties, abuse their power, or commit irregularities for personal interests, the departments in charge shall punish them; if crimes have been committed, the violators should be investigated for criminal responsibility according to the law.

 

 

Chapter VI Supplementary Provisions

 

Article 62: When the branch of a company, with consent from the legal representative of the company, conducts collective negotiation, signs and implements a collective contract with employees in the branch, this regulation shall be followed.

Institutions and privately owned non-enterprises which implement enterprise-style management shall observe this regulation.

 

Article 63: This regulation shall go into effect as of … , and the Guangdong Province Provisions on Enterprise Collective Contracts promulgated by the 22nd meeting of the Standing Committee of 8th Guangdong Province People’s Congress on June 1, 1996 shall be abolished simultaneously.

Revealed: How trade unions are failing in Shenzhen’s factories

30

Oct 2013

Olivia Rosenman       

Post from South China Morning Post: http://www.scmp.com/news/china-insider/article/1343678/revealed-how-trade-unions-are-failing-shenzhens-factories

 

Trade unions are invisible and ineffective in four factories in Shenzhen that have previously been recognised by the government as leaders in protecting their workers’ rights, according to undercover investigations conducted by a group of local university students.

 

Pay rates below minimum wage, excessive working hours, insufficient safety protection and poor working conditions were discovered in four out of five factories targeted by the students. Union membership was low and many workers were unaware the trade unions existed.

 

Twelve students in the southern Chinese city posed as job-seekers during their summer break and took up employment in five different factories, three of which had received national awards for their trade unions. The students recorded their personal observations and conducted in-depth interviews with the workers.

 

In the Gaoxin Electronics factory, work days continued into the early hours of the morning during busy periods, and staff were paid less than the minimum wage. Workers could only take leave without pay and were fined 100 yuan (HK$126) each time. Supervision was harsh, toilet breaks limited and water and soldering dust were serious safety hazards.

 

On top of substandard conditions and remuneration, the students discovered minimal union participation. Workers were confused about the role of trade unions. Many did not know if they were members, several did not even know there was a union available to join, according to the students’ report.

 

At one factory, Baitai Jewellery, none of the 33 workers surveyed knew if they were a union member, only one knew what a trade union was. At Fuqun Electronics, 30 per cent of the workers knew there was a trade union, but less than five per cent knew if they were members. None of the five factories had democratic union elections.

 

"It’s pretty much what we would have expected. It’s been the standard situation for enterprise trade unions in China for a long time where they don’t really represent workers’ interests”, said Geoff Crothall, a long-term advocate of workers rights at NGO the China Labour Bulletin.

 

 In May last year, the Deputy Head of Shenzhen’s trade union federation said that direct elections would become increasingly common in Shenzhen’s factory unions, and singled out 163 enterprises to be targeted in the coming year.

 

More than a year later, there has been little progress. "The point of the students’ investigation is that the Shenzhen Federation of Trade Unions promised these elections and to improve the situation and it doesn’t seem that much has changed’, said Crothall.

 

Baitai Jewellery was one of 163 factories targeted. The students reported Baitai’s union did not have an office, telephone hotlines, mailbox, or even a bulletin board.

 

The situation at the Japanese-owned Epson electronics factory was better. All of the 25 workers surveyed at the Epson factory were aware of the trade union and 23 of them knew whether they were members or not.

 

The students sent an open letter to the Shenzhen Federation of Trade Unions along with a report documenting their findings. "The unions are not fulfilling their duty. There were series violations of labour law discovered in all five factories”, reads the letter.

 

The letter urged the federation’s chairman to settle the disputes in the four factories from their report, and to promote direct elections for all factory workers in Shenzhen.

 

The Shenzhen Federation of Trade Unions did not respond to a request for comment.

 

Workers’ rights in the southern manufacturing belt have long caused unrest and are a sensitive issue for local governments. Several high-profile incidents in recent years have drawn international attention, such as a wave of strikes in a Honda factory in Foshan in 2010 and several suicides at Foxconn plants in the past three years.

 

The weibo accounts of all of the students involved have been deleted.

 

 

 

A “local” speaks out for the “migrants”

19

Aug 2013

She is the Chairperson of the Hong Kong Federation of Asian Domestic Workers Unions, and a local domestic worker - she is Po Lai Wan, usually known as “Bobo”.

 

On 15 August, FADWU met the Labor Department to discuss the Minimum Allowable Wage of Migrant Domestic Workers, and she was one of the representatives. As a local worker, Bobo knows a lot about the condition of migrant domestic workers.

 

‘Why am I concerned about migrant domestic workers? Because I have been a live-in domestic worker myself,” she said clearly. “At that time,” she said, “I didn’t have any freedom, just like migrant domestic workers nowadays.” She was 24-hours on call 6 days a week, and even on her holiday, there were some rules: "I went out for my holiday at 8 p.m. on every Saturday, and I would have to go back home (i.e. to the workplace) by 8 p.m. on Sunday. So I just slept at my sister’s home once a week for the holiday.” She added: “I suppose it was better than what migrant domestic workers have now, as they cannot even meet their relatives on their holiday.”

 

As a local worker, her consideration for migrant domestic workers came from her own experience. This also makes Po a different kind of union leader. Listening to her, we can understand the meaning of “solidarity”.

 

According to a survey, live-in domestic workers work for 12-16 hours per day on average. As times goes by, the economy grows, and full time domestic work is no longer an attractive choice for local females. It raises the demand for full-time migrant domestic workers. Almost 300,000 of them now take care of local families’ housework, childcare as well as elderly care needs, thus releasing labour power for the Hong Kong economy.

 

The difference in status between “local” and “migrant” has always been a tool of the government to divide workers. They always claim that the restriction on migrant domestic workers is “for the local domestic workers.” Facing the Assistant Commissioner of the Labour Department, she replied clearly: “As a local domestic worker, I think that the job market between migrant and local domestic workers is different, they are not competitive with each other."

 

Listening to translations in an English-speaking meeting with migrant workers and the Labour Department, Bobo is always able to catch the point and ask further questions. As a union leader, she has also joined the Social Affairs Committee of HKCTU.

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