Position and Analysis

Kunshan blast exposes OSH concerns

20

Oct 2014

Sectoral report

 

Kunshan blast exposes OSH concerns

A tragedy triggered by dust

 

On 2 August 2014, an explosion took place at Zhongrong Metal Production Company (hereafter Zhongrong Co.) in Kunshan City, Jiangsu Province. 75 workers were killed and 185 were injured. After two days of investigation, Yang Dongliang, the head of China's State Administration of Work Safety, announced that the blast was triggered by a spark that had ignited a dust-filled room. This accident also shows that local government has failed to keep work safety intact.

 

Trading off work safety for investment.

After the explosion, a Chinese newspaper, China Economics Weekly. reported on the Kunshan Government, a county-level city government's logic in drawing investment. Since 1985, it has been pro-actively looking for foreign investment, including advertising itself with an article written by its county chief in Hong Kong newspaper Ta Kung Pao. In the article he wrote that:

 

Kunshan people are hospitable and we welcome you (investors). The more you “exploit” us, the happier the people in Kunshan are. We are grateful to those who help bring in investment, and we treat investors as our family members. Those with high capability can make room for investment and those who harm investment are sinners”.

 

With this attitude, Kunshan City has attracted over 4,000 Taiwanese enterprises in the past two decades. Zhongrong Co., owned solely by Taiwanese, arrived in Kunshan in 1998. Foreign investment accounts for 50% of Kunshan's revenue, yet labour conditions and OSH are neglected. The mainland Chinese media, Wuyou Zhi Xiang, made a list of violations of Zhongrong Co. and criticized the Kunshan Government for intentionally accommodating and conniving in these illegal acts.

 

Workplace traps exposed by the blast.

Labour conditions and OSH standards at Zhongrong Co. are extremely rough. After the explosion, workers gave detailed accounts to the media.

 

According to Ms Jiang, who polishes aluminum products at Zhongrong Co.,

 

“By noontime, our workstation would be covered by a layer of dust, about the thickness of a coin. Each workstation has a dust extraction tube, but there is more dust than it can handle. The production unit is cleaned once per day at lunchtime, but it doesn't help. Once we resume working, the room is rapidly filled with dust again. When we eat, our bodies are covered by dust; we look like we are freshly out of a brick kiln. Only our teeth are white. There is a saying in our factory, 'if you don't take a shower at night, you look like a ghost.'”

 

Ms Jiang's husband joined Zhongrong Co. in 2005 and suddenly fell sick in 2012.

“He vomited a lot of blood and then his nostrils bled.” He was diagnosed with “dust-borne infection”. Back in 2010, some workers hung out a banner at the factory gate stating, “Irresponsibility after causing (workers) lung diseases, it is intolerable”.

 

Other workers have also confirmed that the plant has neither installed explosion-proof anti-static devices or dust-monitors to give off alarms when the dust concentration reaches a certain level. The factory only offers workers face masks and gloves once a week. Workers work 14 to 15 hours per day and have one or two days off per month.

 

Concerns expressed by industrial relations scholars.

Chinese industrial relations academics then released an open letter, calling for workers to be given the the rights to supervise work safety. Some even pointed out that between 16 and 25 July 2014, less than one month before the blast, Kunshan City had conducted a specific action to examine and conduct remediation of work safety, covering the city. The project was reported full compliance with safety regulations. This leads one to believe that the work safety supervision bureau has turned a blind eye to unlawful practice and a heavy price is paid by workers.


Seven labour organizations and trade unions have issued an open statement, calling for the client of Zhongrong Co., CITIC Dicastal Co. Ltd., to bear the lifelong medical treatment costs of injured workers and to compensate the victims' families as required by law. They also demand the Supreme People's Procuratorate, Kunshan City Government and Jiangsu Provincial Government investigate the causes and responsibilities in detail. The investigation report should be made public with proposals and implementation plans to prevent accidents in future.

 

Who is responsible for the enormous underpayment of pension insurance premiums?

20

Oct 2014

Experts' views

 

Who is responsible for the enormous underpayment of pension insurance premiums?

Chu Kong-wai

Labour Education and Service Network

 

In April 2014, tens of thousands of workers in Yue Yuen Shoe Factory launched a strike, which was closely followed by both domestic media and the international community. The conflict broke out due to Yue Yuen's underpayment of the social insurance premium, as workers realized that after enduring a dozen years of hardship in the workplace, they would not be entitled to a decent pension. With the grim prospect of only getting a pension of a few hundred Yuan, anger was provoked among the workers.

 

The Chinese social security scheme consists of five types of insurance and one type of fund. Pension insurance is a very important component. There are two types of pension insurance, namely employees' pension insurance and residents' pension insurance. The amount of these two varies a great deal, sometimes more than ten times, depending on which type of insurance one is entitled to. For migrant workers, receiving the employees' pension insurance is particularly important. The Social Insurance Law aims to provide the long missing protection for migrant workers and urban workers; however, it is a toothless tiger in reality. The Yue Yuen strike centered around the enterprise's underpayment of the pension insurance premium that it is obligated to pay for. This case exposes just the tip of the iceberg. It is common practice for enterprises to underpay social security benefits, and migrant workers, despite their significant contribution to the economic reform, are usually the victims of the enterprises' foul play.

 

The root of underpayment comes from the employers' greed in their cutting costs and avoiding their responsibility to guarantee workers a decent retirement. Yet, enterprises and local governments often point their fingers at workers, accusing the workers of being short-sighted and refusing to pay their share of the premium contribution. Yet, in today's China, workers and migrant workers are definitely the most vulnerable group and with this background, they have been fighting for their rights to pension bitterly, yet determinedly. This means that workers treasure their pension rights, especially the first generation of migrant workers, who are approaching their retirement age.

 

In a conference in China, some legal experts from Guangdong Province's Social Security Bureau openly commented that as economic growth is the core goal of the state, enterprises would only need to pay for 60% of their employees' pension insurance premium, to pass the benchmark. This shows that the underpayment of social security funds is indeed supported and covered up by local governments and the so-called legal experts. On 1 January 2013, the Shenzhen City Government launched Measures to Repay Pension Insurance Premium, with the aim of making unlawful enterprises pay back the missing premium. However, the eagerness of senior migrant workers to know more about these Measures was met with detours and excuses, when they approached the relevant authorities. In other words, the Measures exist only on paper. The two examples quoted above tell us that local governments are accountable for the problem of missing pension insurance premiums.

 

In China, the three core labour rights (the rights to strike, to organize and to collectively negotiate) are not well protected and workers are still counting on protection from the government. However, for the sake of economic growth, local governments often sacrifice workers' basic rights and intentionally “fail” to implement the social insurance law. Together with corruption, business-officials collusion and high inflation rates which grassroots workers cannot cope with, workers are gradually losing faith in the official system and this is the real reason that they are reluctant to contribute into the pension insurance scheme.

 

 

Who stole Shenzhen workers’ pension?

20

Oct 2014

Who stole Shenzhen workers’ pension?    

A pension insurance system riddled with problems.

 

In April 2014, 48,000 workers launched a strike at Yue Yuen Shoe Factory, located in Dongguan City, over underpayment of the social security premium. It was the largest strike in China in recent years. Migrant workers were first entitled to participate in Shenzhen City’s pension insurance (one component of social security) 27 years ago (in 1987) and the Social Insurance Law requires enterprises to pay premiums according to workers’ actual wages. Yet, recent research on pension insurance shows that nearly 80% of the enterprises in Shenzhen are violating the law, by underpaying the premium and, instead of paying the premium for all workers, more than half of the factories only pay for some of the workers.

 

“Underpaying” as common practice, as found in nearly 80% of enterprises.

Between 22 December 2013 and 5 March 2014, Shenzhen Firefly Workers' Services Centre and Huang Qiaoyan, lecturer at School of Law of Sun Yat-Sen University, jointly interviewed over 600 migrant workers, who were working in large-scale long-established factories (with averagely over 1000 workers in each factory and the average factory being more than 20 years old), to understand the status of their pension insurance and premium payments. It was found that nearly 80% of the factories were paying the premium based on the legal minimum wages, while less than 5% of the factories paid premiums according to their actual income (including bonus, allowance, subsidy, overtime wages and etc). For details please refer to Table One.

 

Table One: Status of Premium Payment of Pension Insurance

Table Two: Other criteria enterprises adopted in paying social security premiums

 

 

Enterprises’ “homemade rules”, a variety of calculation methods.

Social Insurance Law and related regulations in Shenzhen require an enterprise to register a worker under the social security scheme within the first month (30 days) of her/his employment. An enterprise should then contribute

13% of the actual total wages as pension insurance premium and the individual worker should pay in 8%, However, more than half (50.4%) of interviewees reported that their employers selectively pay social security premiums for certain workers, instead of for all. In terms of payment and calculation methods, the enterprises make up their own rules. Over 35% (35.79%) of the factories would only pay the premium after a worker has completed her/his probation, which leaves the temporary workers unprotected. Nearly 15% of enterprises divide workers by their ranks and underpay the grassroots workers’ premium, a de facto workplace discrimination. Nearly 40% (38.95%) of enterprises pay the premium according to “other criteria”, some of them let workers “choose” if they want to participate in the social security scheme and some ask workers to apply by themselves. Please refer to Table Two for the other criteria.

 

Contribution on the basis of legal minimum wages ends up not being much better than the government’s subsidy

Based on this research, a migrant worker can only receive some 700 Yuan of pension per month in Shenzhen, if her/his pension premium has been paid on the basis of legal minimum wages. Compared with the basic living allowance of 620 Yuan, which one can apply for without any prepaid contribution when reaching the city’s poverty line, it is indeed a very bad deal for the paying workers. Furthermore, with 700 Yuan is not only impossible to live in an expensive city like Shenzhen, it is also barely enough to live in a rural area, let alone cover the extra medical expenses needed when one ages. Migrant workers contribute most of their life to factories and the economic development of Shenzhen, yet, in return they are abandoned by the enterprises and society and struggle, or often fail, to make ends meet.

 

Confiscation by Social Security Bureau leaves retired workers penniless

Li Xiulian (a pseudonym) is 50 years old. She is originally from Hunan Province and has worked in Shenzhen for almost 20 years. She started working in a Hong Kong-owned garment factory in December 2002 in Shiyan District of Shenzhen City. The factory only started to pay for her social security premium in late 2006. When she retired in April 2014, she found she was not entitled to any pension, as the Social Insurance Law requires one to pay premiums accumulated in an individual account for at least 15 years, before s/he can receive any pension. Ms Li recalled that she had requested the employer pay for her premium in 2004 but was told that she had to work for five years before she could join the social security scheme. In 2006, she finally managed to convince her employer to pay the premium. However, eight years of payments does not make her eligible for a pension and she could only get back the 8,000 Yuan,  contributions she had made over the years, while the part contributed by her employer was kept by the Social Security Bureau. Enraged, she said, “my employer’s payment is meant for me, not for the Social Security Bureau, even if it doesn’t give me (a pension), the Bureau should pay me back.” She repeatedly demanded her former employer pay in the missing years but they declined. The former employer only suggested that she contribute the premium in her hometown as a replacement, or withdraw the total amount from her individual pension insurance account. Without a pension, Ms Li has no choice but to return to the labour market and continues to make a living in a factory. Her case is rather common. In recent months, labour organizations in the Pearl River Delta have received many similar complaints.

 

A potential collective movement to claim social security triggered by enterprises’ neglect.

Nearly 30% of workers have taken actions to make enterprises pay for their pension insurance. The most common strategy is that workers start a negotiation with their employer. However, the research shows that workers are often ignored if they talk to the boss about this. Currently, most workers have not sought strikes, stoppages and other “pricey” actions to fight for their rights to a pension, but a growing trend of collective action to fight for their rights is observed.

 

HKCTU response to legislation on dispatch workers

07

Sep 2013

HKCTU’s Response to a Consultation on Labour Dispatch Provisions

7th September 2013

 

The China’s Ministry of Human Resources and Social Security drafted the Several Provision on Labour Dispatchfor public consultation subsequent to the amendments on dispatch labour under the Labour Contract Law, effective1 July 2013. Out of the concerns over labour rights protection, the following are the comments from the Hong Kong Confederation of Trade Unions (HKCTU).

 

1. Equal pay for equal work should be the primary principle. 

The state-owned media in China, Xinhua, estimated the number of dispatch workers in 2011 at 37,000. In some corporations, even for the state-owned enterprises, the usage of dispatch workers are up to 70% of the workforce. The most critical issue is the wage and protection of dispatch workers is much lesser than the regular workers’. For instance, the Beijing Federation of Trade Unions’ investigation report on working conditions of dispatch workers, released in October 2012, revealed that 62.8% of the interviewees earned CNY 2000 or less compared to the regular employees. There were only 35% of the respondents perceived that they had equal pay for equal work in their respective workplace. HKCTU advocates that dispatch workers should enjoy the same treatment as regular workers to end the exploitation in name of a different form of employment.

 

2. It is necessary to limit the use of dispatch worker by both scope of business and number. 

HKCTU supports the Several Provision on Labour Dispatch’s definition on dispatch labour that the workers are responsible for "auxiliary positions”. Additionally, HKCTU also agrees that if it there is necessity to hire dispatch worker, the number of dispatch worker should not be more than 10% of the workforce. More importantly, HKCTU is concerned about the implementation, monitoring and promotion of the proposed provisions. HKCTU strongly recommends government, media, unions and non-governmental organizations to educate workers about dispatch workers protection and enhance enforcement. 

 

3. Strengthening the mandate and representation of the union in defending rights for dispatch workers. 

Even though dispatched workers are filling temporary or substitute jobs,Several Provision on Labour Dispatch ought to spells out the right to join and form unions in the workplace, the right to participate in union elections, and the right to collective bargaining, regardless a union is for all the workers or a union of the dispatch worker agency. Dispatch worker should be able to express their views and be represented in workplace unions. Furthermore, unions should support dispatch worker in right-defending actions and complaints, ensure the employers honour the terms of employment, and monitor the working conditions of the dispatch workers.  

 

4. The legal loopholes enable employees to use sub-contractor in order to evade responsibility.

HKCTU notes that the existing Labour Law and Labour Contract Law do not provide the protection for subcontracted workers.Despite the implementation of the Several Provision on Labour Dispatch, the enterprises can use subcontractor to get rid of their legal obligations. The plight of the dispatch labour remains in limbo. In fact, subcontracting has become a trend. Subcontracting has been prevailing in the construction sector. The frontline construction workers barely enjoy any labour protection. In addition, the media in Chinahas disclosed that the banks have outsourced the work to the subcontractors recently. Positions like managers in the lobby, security guards, tellers, hotline operators and credit card promoters have been contracted out. It is believed that the subcontracted workers earn mush lesser than regular workers and dispatch workers. HKCTU demands the Several Provision on Labour Dispatch should ensure equal pay for equal work among the subcontracted workers.

 

HKCTU submission UPR of China

02

Mar 2013

Human Rights Council Universal Periodic Review on People's Republic of China

Submission of Hong Kong Confederation of Trade Unions (HKCTU)

4th March, 2013

 

People's Republic of China

 

Introduction

Despite some moves towards greater recognition of the positive role of collective bargaining in the resolution of labour disputes and the smoother running of industrial relations there continues to be a lack of progress towards genuine Democratic elections within the ACFTU and the state monopoly of the ACFTU remains – leaving Chinese workers with no genuine freedom of association.  The work of labour rights groups and worker organisers remains severely repressed.

 

Detention of worker activists and labour rights supporters

The HKCTU remains concerned at the continued inability of workers and labour activists to utilize their right to freedom of expression in relation to labour activities. For example, just 12 months after the initial review of China by the UPR process, a report by the International Federation of Journalists outlined over 80 orders relating to censorship and restrictions on reporting issued in 2010 and highlighted the continued arrest and sentencing of journalists who fail to observe internal censorship rules on the reporting of protests and strikes.

The HKCTU also seeks answers as to the legality of the continued imprisonment of workers and worker representatives including those in long term custody and those detained briefly for their role in protests and strikes. A non exhaustive list (see appendix I) from the HK office of the ITUC (IHLO) and press coverage contains 36 prisoners imprisoned for their activities relating to freedom of association. Many are long term detainees.

 

Failings in core human rights: Freedom of association and expression

Despite some moves towards the incorporation of key articles in international human rights law, there continue to be little or no progress towards the recognition of workers right to freedom of association and other core labour related rights. The HKCTU seeks to raise the fact that progress on freedom of association remains inadequate. Workers remain unable to form or join a trade union of their choice. The All China Federation of Trade Unions (ACFTU) continues to be the only "workers' organisation" recognised and allowed under the trade union law.

In February 2001, the Chinese Government ratified the ICESCR but effectively entered a reservation on a fundamental element of the Covenant on the right to establish and join workers' organisations of one's own choosing, thereby putting itself in breach of internationally recognised principles on the law of treaties.  UN bodies have repeatedly "regretted" China's "prohibition of the right to organise and join independent trade unions" and "urged" China "to amend the Trade Union Act to allow workers to form independent trade unions outside the structure of the ACFTU".  The HKCTU is eager to see what follow up will be made to ensure China addresses these concerns.

In the UN's own compilation report to the UPR process *it was noted that : "(3)1. CESCR regretted the State’s prohibition of the right to organize and join independent trade unions in China. In 2008, an ILO Committee of Experts referred to the Government’s indication that the legislation to regulate the exercise of the right to strike is under examination”.

The HKCTU seeks to ask if there has been any progress made towards implementing legislation explicitly protecting a worker's right to strike.

In the Report of the working group on the 2009 UPR of China, Sweden raised this prohibition regarding 8.1(a) of the IESCR and the ensuing lack of freedom to join and form unions of one's own choice. In answer the PRC representative stated that "Chinese law does not prohibit strikes. If a strike occurs, the local government will try to mediate between the trade unions, enterprises and striking workers to find a solution to the problem. The Chinese constitution and the trade union law provide that the workers are entitled to organize and join trade unions and carry out activities entirely free.”.

The HKCTU wishes to question this and believes this statement is in stark contrast to the continued reality where the ACFTU remains the sole trade union allowed to exist and where all new unions formed must "affiliate” to the ACFTU. Further clarification should be sought as to the definition of workers being "entirely free” to organise unions and carry out union activities. According to existing regulations; any such organisation, whether local, national or industrial, "shall be submitted to the trade union organisation (the ACFTU) at the next higher level for approval". Trade union organisations at a higher level "shall exercise leadership" over those at lower level. 

 

Right to strike

The right to strike was removed from China's Constitution in 1982. As noted by the Chinese representative in the last UPR of China the current trade union law (Article 27) does not specifically outlaw strikes but nor however does it include them as forms of lawful industrial actions.

The HKCTU calls for clarity on this issue and for strikes to be expressly included in the law. Otherwise, as of now there remains ambiguity which can lead to some strikes being harshly repressed as 'illegal work stoppages: while others may be more leniently resolved. This does not allow for the coherent and confident expression of a worker's right to strike and enables the authorities to crack down on worker strikes and protests they deem too sensitive or threatening.

The HKCTU has noted numerous occasions when representatives of workers', freely chosen by the workers have been detained and imprisoned for utilising their right to freedom of association and when workers attempt to organise their own unions. (see appendix II)

 

Institutionalising worker action

The lack of active support for workers in many strikes and labour unrest by the ACFTU, as a key part of the ruling state apparatus is well documented. Workers in the majority of private industries have instead attempted to organize themselves and where possible deal directly with the factory management. Most remain unaware of union presence in their own factory. The ACFTU and the government are increasingly anxious to ensure that workers do not take independent action in any organized form. This is one reason why there has been some progress towards a negotiation of collective bargaining – if worker action is channeled through semi official forms then the risk of confrontation is lessened.

There is currently no national law specifically governing collective bargaining procedures but increasing collective contract are being regulated and relevant local legislation proposed and unlike the situation in Hong Kong, in the PRC mainland a collective contract established in line with the regulations is legally binding.   Article 33 of the Labour Law states that workers have the right to conclude a collective contract "in an enterprise where the trade union has not yet been set up".  In one labour NGO report from July 2012, it was found that over half of the 24 strikes and worker protests monitored in June 2012 resulted in some form of collective bargaining or formal negotiations between management and workers.  However despite this welcome trend, the HKCTU notes that it was also reported that police were dispatched in ten cases with several workers detained in various provinces for disrupting social order during their strikes, protests or road blockages.

 

Restrictions on trade union elections

Although the Trade Union Law states that trade union officers at each level should be elected, most officials are still appointed. Once elected, candidates must be approved by the provincial-level ACFTU. While experiments in worker led elections and the election of self chosen representatives for the factory trade union have been going on for the past decade or so it is only recently that there has been a wider push from the ACFTU to respond to the demands from  workers through more genuine election process. Many provinces are now legislating on this issue in response in an attempt to forestall repeated strike waves of worker activism around the worker ownership of the ACFTU. Many strikes have included calls for representative factory unions and direct elections of union officials on the shop floor including the strikes in the auto industry in 2009-2010.  In 2010 and 2011, "direct elections” were held in the Honda factory where a 17-day-long strike took place while in May 2012, another "direct election” was held in the Ohms Electronics Shenzhen Co. after a March strike over working conditions, pay and elections. The company agreed to allow workers to select a worker instead of a manager appointed by the owners. It has also been reported that the Shenzhen federation of trade unions is planning the organisation of these elections in 163 enterprises in 2012.

However although the term "direct election” (zhixuan in Chinese) is widely used it does not, in this case mean the democratic election of officials by all workers. In both the case of Honda and Ohms Electronics, the rank and file workers in different departments voted in the election of departmental branch committees and trade union members’ representatives. Then the election of the enterprise trade union officials was held, but only the trade union representatives, just over 70 of them, were able to nominate candidates and vote. Similarly in the elections of the union chair and vice chair, only the trade union officials could nominate candidates and only the trade union members’ representatives had the right to vote. The trade Union law states that union officials at various levels can be elected by the union's members’ congresses or the union members’ representatives’ congress. However most of the so called 'direct-elections actually use the latter – and least democratic – method for elections.

The HKCTU, while acknowledging some progress, seeks to know when genuine elections of trade union officials by rank and file union members will take place in a meaningful manner and substantial scale.

 

Labour dispute mediation regulations

In November 2011, the Ministry of Human Resources and Social Security passed a regulation that requires enterprises set up labour dispute mediation committees in the workplace. The Regulation on Enterprise Labour Disputes Negotiation and Mediation is targeted at improving the resolution of labour disputes, ensuring disputes remain contained within the workplace and reducing the number of cases appearing in the legal system and wild cat strikes and protests.  However  the compulsory establishment of a labour dispute mediation mechanism at the workplace without the democratic election of worker representatives and the reform of enterprise trade unions into representative worker unions suggest these committees may become another tool for company and state control.  Committee members representing workers can be trade union officers or workers nominated and agreed by workers, not necessarily democratically elected.  In addition, the committee is also meant to promote workers’ understanding about the labour laws, regulations and government policies (Article 16). The committee therefore carries also the purpose of persuading workers to accept reconciliation rather than using the "illegal means” and strikes to protect their rights.

The HKCTU believes that the system fails to allow workers to properly exercise their right to collective bargaining and freedom of association and instead is being seen as another tool in state control of worker protests. (see appendix III)

 

Government efforts at limiting worker led civil society and labour rights groups

In Guangdong Province, new policies on Social Administration Reform are being implemented in order to neutralise civil society opposition to government policies and discontent among workers and to ensure a pro-active policy on frustrating and nullifying the potential for organised worker opposition and activism. Many labour groups have been forced to close while, unlike social work and community based service groups, labour groups have generally been unable to properly register with the Ministry of Civil Affairs in Guangdong and Shenzhen.

The HKCTU records with concern the fact that in the years following the last review of the PRC there has been a crackdown on the legitimate work of labour rights NGOs and groups providing support for workers. This has been increasingly severe in the past year. The HKCTU notes that despite progress in some areas of civil society opening, labour rights NGOs remain tightly controlled.

The authorities have used a range of tactics including pressure on landlords, spurious fines for tax issues, fire safety non-compliance, covert and overt surveillance. The list of organisations affected include the Shenzhen based organisation Little Grass Workers’ Home which was forced by the landlord to move, received a penalty of RMB50,000 for alleged non-compliance with fire safety and  was investigated for suspected tax evasion. Finally in July 2012 it decided to close. According to reports, the local authorities maneuvered the harassment, and as follow up offered the groups a deal –  promising them assistance to relocate to another district in return for their agreeing to list and share with the government the workers and volunteers’ contact and name lists in all the activities organised in the future. Organisations that had rejected similar deals such as Little Grass Workers’ Home and the Shenzhen Dagongzhe Centre, were reportedly further retaliated. The Dagongzhe Centre, which has previously been a target of government and business repression, closed its centre in June 2012 after a two-month fight with the landlord and government. The Centre then moved to a new centre in a nearby district but one week later the new centre was raided by the Ministry of Industry and Commerce and threatened with closure. In the summer of 2012, several schools for the children of migrant workers were forced to close down as part of a government push to bring them into the official school system and reduce the activity of independent groups. However adequate places for these children have not been found

 

 

Hong Kong Special Administrative Region

 

Introduction

Although 23.5 per cent of the workforce in Hong Kong is unionized in 2011, there are still no regulations on collective bargaining. Freedom of association and the right to strike are recognized by law, but there is not enough protection in reality.

Meanwhile, wage and working time are not satisfied in Hong Kong. The minimum wage rate is too low for decent living for workers and their families. The long working hours is also a serious problem.

 

The right to form trade unions and the right to strike

The Employment and Labour Relations Ordinance includes provisions to protect workers against dismissal for trade union activities but does not offer any remedies for individuals who have been subjected to other forms of anti-union discrimination. The law only ensures that, were a worker dismissed for participating in a strike, s/he would have the right to sue the employer for compensation but not reinstatement.

Since 1999, the government has stated that the Employment Ordinance, Chapter 57, will be amended to introduce mandatory reinstatement and order for re-engagement in the Labour Tribunal in cases of unreasonable and unlawful dismissal. However amendment has been deferred for over 13 years. Meanwhile, the penalty for anti-union discrimination at the moment is only a maximum fine of $ 100,000 (US $ 12,800), and the maximum amount of compensation is set at HK $ 150,000 (US $ 19,230).

While litigation against anti-union discrimination of employers is theoretically possible, in practice it is difficult and successful cases are rare. There have been only four prosecutions for the past fifteen years. Instead, Instances of dismissal or harassment for union activity are reported every year.

For example, in December 2012, a group of security guards employed by Hang Seng Bank was going to organize a union, but the company dismissed one of the worker leaders in order to threat others. The trade union is going to file a complaint of anti-union discrimination but it is expected that no prosecution will be made. The bank can easily refute that they dismissed the worker leader because of his poor working performance.

 

The right to collective bargain

The HKSAR government has persistently refused to implement the recommendations of the ILO on introducing legislation for the objective recognition of trade unions for the purpose of collective bargaining.

Collective bargaining is neither promoted nor encouraged by the authorities, and employers generally refuse to recognise unions. It is believed that less than 1% of workers are covered by collective agreements, and the collective agreements that do exist are not legally binding. Without legal protection to guarantee these rights, workers are also subject to arbitrary and unilateral actions of employers and are denied job and income security.

In 2012, several cases were reported regarding the rejection of collective bargaining by the employers. In July, Watson transportation workers were unsatisfied with the lack of manpower. They called for a strike and hoped to negotiate with the management. However there was no response from the management. In November, Cathy Pacific Airways Flight Attendant Union negotiated the pay raise with the company. While both parties were still negotiating, the employer announced the pay rise unilaterally.

Meanwhile, civil servants unions could only participate in joint consultation committees (JCC) in order to raise their concerns. There is no formal collective bargaining procedure for civil servants. The government’s justification, that all civil servants are engaged in the administration of State and hence their exemption from the right to collective bargaining, is misleading. Many civil servants are not responsible for formulating policies, or performing law enforcement and regulatory functions.

 

Minimum wage and standard working hours

Although the minimum wage has been implemented since 2011, the hourly minimum wage rate, which is $28 (around US $3.6), is not sufficient for the living of the workers and their family. According to the survey of the Hong Kong Council of Social Service, the number of low income households with employed member [1] has increased from around 185,000 in 2011 to 200,000 in 2012. The HKCTU and other labour organization have urged the government to raise the hourly rate to at least $35 (US $4.5) and review the rate annually, especially the existing inflation rate is around 4 per cent.

Over 45 per cent of total employees work more than 48 hours per week. 13 per cent of workers even work more than 60 hours per week. A survey of the University of Hong Kong found that long working hours have adverse effect on workers’ health and social life. [2]Disappointedly, the government has no intension to regulate the working time.

 

 

 

References

China Labour Bulletin, various reports

IHLO, various reports

ITUC, Annual Survey of trade Union rights, WTO report on obligations

Selected Chinese newspapers

 


 


*http://lib.ohchr.org/HRBodies/UPR/Documents/Session4/CN/A_HRC_WG6_4_CHN_2_E.pdf)

[1] the household’s income which is lower than 50 per cent of the median household income, while at least one member of the household is employed.

[2] http://hkupop.hku.hk/english/report/bokss12/index.html

 

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