Position and Analysis

HKCTU June 4th Declaration on 2015

02

Jun 2015

 

Under the one-party dictatorship, workers in China are still deprived of the three labour rights: freedom of association, the right to strike, and the right to collective bargaining. Their struggles for labour rights often lead to oppression from government officials and employers. Meanwhile, due to the undemocratic political system and collusion between government and enterprises, workers in Hong Kong are similarly deprived of standard working hours and the right to collective bargaining.

 

As Chinese workers become aware of their legal rights, they are more courageous in their struggles which are also becoming more frequent. In the meantime, apart from forcing labour organizations to close down their offices, local governments are gradually turning to the use of violence and detention as repressive means against workers who are often forced to accept resignation compensation which is much lower than what is stipulated in the law.   In the first six months of 2015, there were at least three cases of labour disputes in which police broke into the venues where workers were meeting. They beat up and arbitrarily arrested staff of labour organizations and workers representatives. At least 7 labour activists are now in prison (see name list below).  Some of them are serving life or long term imprisonment due to their support of the 1989 Democratic Movement or organizing independent labour movement.  There are also innumerable but undocumented cases of labour activists who are detained or criminalized.

Since the second half of 2014, the Chinese government has been tightening its surveillance of mainland NGOs that receive overseas funding and are stifling the development of the civic society and the labour movement. On June 16th, 2014, the Guangzhou Government passed the ordinance of “Community Organizations Management Directives”, stipulating that any NGO primarily funded by an overseas NGO would be defined as a branch of the overseas NGO, allowing its activities to be restricted or even banned. The draft Foreign NGOs Management Law and the National Security Law will be reviewed by the Standing Committee of the National People’s Congress this year. The purpose of the new laws is to block mainland NGOs from building connections and receiving support from overseas. Under the new laws, Chinese people’s right to free association will be further curtailed.

We call on the Hong Kong and International Community to continue to focus on labour rights in China and urge the Chinese Government to immediately:

  1. Release all imprisoned labour activists, and stop all suppression and violent acts against labour organizations and workers' representatives;
  2. Ratify ILO Conventions No. 87 and No. 98; namely the implementation of the right to organize trade unions and collective bargaining, the elimination of severe constraints on domestic NGOs, the protection of the freedom of association and the establishment of the three labour rights;
  3. Implement strict law enforcement to severely penalize enterprises for labour rights infringement and to protect labour rights

 

Labour Day Declaration on Ending Violence against Labour Activists

24

Apr 2015

 

Since 2012, the Mainland labour NGOs has been politically oppressed by forcing them to move out from their offices. However, the oppression has been escalating to detaining and seriously assaulting labour NGOs’ staff by police recently. HKCTU is going to publish a Labour Day Declaration on ending violence against labour activists and calling for your support to condemn the abuse of police power against labour activists in China. This Labour Day Declaration will be announced by HKCTU at Victoria Park before the beginning of Hong Kong’s May Day Rally, it would be submitted to Liaison Office of the Central People’s Government in the Hong Kong S.A.R. on 5 May 2015. The deadline for collecting signature would be 4 May 2015. Should you have any enquiries, please feel free to contact Mr. Wong at 2770 8668 or by email .(JavaScript must be enabled to view this email address). Sign now!

 

Labour Day Declaration on Ending Violence against Labour Activists

Condemning violence against labour movement & calling for an immediate stop to violent assaults

 

Since 2012, the HKCTU has made several calls, demanding a halt to political oppression against labour organizations in China. In recent years, whilst Chinese workers’ awareness is growing and workers are getting more vocal to resist labour violations, the political space is also tightening. The oppression has been escalating, from forcing labour organizations to move out from their offices, to physical assaults against their staff members. On 31 December 2014, the HKCTU and Globalization Monitor jointly launched a global petition campaign, to address the violent attack on Zeng Feiyang, the head of Panyu Migrant Workers Documentation Center, as well as many other similar cases. Until April 2015, staff members of Chinese labour organizations have been living under consistent threats of violent assaults, some have been detained and seriously assaulted by police.

 

Abuse of police power Groundless crackdown on workers' rights-defending actions

On 2 April 2015, Peng Jiayong, Liu Shaoming, Deng Xiaoming who were volunteers of Haige Workers’ Services Centre, were forcibly abducted to Yakou Police Station in Zhongshan City. The three volunteers have been assisting workers to negotiate with the Japanese-invested Tsuiheng Package Plant in Zhongshan City, demanding workers’ long missing social insurance premiums and redressing other violations. Peng Jiayong was continuously attacked by the police officers throughout the detention time, resulting in many injuries in his loin, ribs and back of the head, right leg and other parts of his body. Peng was taken to Panyu Shiqiao Hospital for treatment.

 

On 19 April 2015, Meng Han, a staff member of Panyu Migrant Worker Documentation Center was forcibly taken away by nearly 100 police officers while he was assisting workers at Panyu Lide Shoes Industry Company Limited, to re-elect their representatives in a hall. Workers’ representatives were also attacked and detained. After a large number of workers gathered in front of the police station, Meng and workers’ representatives were finally released.

 

In the past few years, labour organizations have been forced to move out from their offices, their registrations were voided, their directors were being arbitrarily detained. We continuously receive news about strikers facing violent crackdown and detention for standing up for their rights. As workers are getting more aware of their rights, the local stabilizing force appears to get out of control. The law enforcement agency openly attacks staff of labour organizations, police assaults striking workers’ representatives and in some areas, they are collaborating with local thugs to suppress workers’ collective actions. The frequency and scale of these attacks are getting outrageously high. Inside China, the government has been emphasising “rule of law” and internationally, it has been marketing itself as a civilized and peaceful rise of China. However, the local governments are allowed to act as hooligans and law enforcement agency openly violates laws, physically attacks workers and threatens workers’ organizations. Obviously China talks the talk but it doesn't walk the walk.

 

The Origin of Labour Day is to memorise the workers in Chicago who were killed in a government-led violent crackdown. The spirit of May Day is to fight against political and capital powers which suppress workers’ rights with violence. Thus, the HKCTU is calling you, who cares about labour rights from all over the world:

 

1.     To condemn the abuse of police power in China, to demand an immediate stop to violence and oppression against labour organizations and workers’ representatives;

 

2.     To call on the Chinese Government to investigate the cases of violent assaults, which involve officials and civil servants, to protect civil rights as its fundamental obligations;

 

3.     To request the Chinese government to ratify and to fulfill the requirements of No. 87 of the International Labour Convention, to protect the workers and citizens that can enjoy inviolability of freedom of association and the right to organize

 

Initiated by:

Hong Kong Confederation of Trade Unions

 

23 April 2015

 

Please click here for the petition: http://goo.gl/idlKaU

 

Relevant news' reports about the above violent assault:

 6 Apr, 2015. The Vancouversun , “China beset by strikes as working class awakens” 

http://www.vancouversun.com/business/China+beset+strikes+working+class+awakens/10949506/story.html

 

At the sharp end of the workers’ movement in China: The Zhongshan Cuiheng strike

http://www.clb.org.hk/en/content/sharp-end-workers%E2%80%99-movement-china-zhongshan-cuiheng-strike

 

18 Apr, 2015. Union Solidarity International, “China’s labour activists unhindered by government clampdown”

http://usilive.org/chinas-labour-activists-unhindered-by-government-clampdown/

The crackdown on the labor movement escalates

02

Apr 2015

Striking workers in factory detained and beaten

Artigas take advantage of loopholes in Law
Workers’ pensions go down the drain

 

On Dec 10th, 2014, nearly a thousand workers from the Artigas Clothing & Leatherwear Co. Ltd. in Longhua District, Shenzhen went on strike twice to protest the company’s non-payment of social security and housing provident fund. Artigas is the supplier of Japanese fashion brand Uniqlo, and Hong Kong brand G2000.


On Dec 18th, 2014, several hundreds of policemen stormed Artigas, with 31 strike leaders were detained and a number of workers beaten, including pregnant women, and one of the detained workers hospitalized with a severe head injury. However, Artigas stood firm and refused any compensation.


Artigas is a subsidiary of the Hong Kong based Lever Garment Limited, with Uniqlo and G2000 as her main customers. Most of the workers at Artigas – having worked in the factory for more than 10 years, some even more than 20 years – Artigas started paying pension insurance for some workers only in 2003. Some female workers learned that Artigas only started to pay for their pension as recently as 3 years ago, despite over 20 years of service in the company. Senior female workers approaching the retirement age of 50, suddenly learned they were not entitled to pension, as they did not meet the 15 years minimum of social security payments.

 

Fearing the enterprise would sneak the shipments out, workers at Artigas took turns to guard at the factory.

The boss of Lever Garment Ltd was accompanied by the police, to order the workers first to return to work and then negotiate.

 

RMB 20 to blackmail workers Striking workers threatened with absenteeism

Despite demands from the workers, the company only agreed verbally to compensate the workers for all non-payments, and the workers launched a strike on Dec. 10th. At the onset of the strike, the workers took shifts, despite cold weather, to prevent the employers from smuggling goods out of the factory. On Dec. 12th, local reporters were denied access to the factory premises and were only able to interview workers through the main gate.  During the interview, a security chief pushed an elderly worker on the ground, but was immediately surrounded by the workers. He was forced an apology for the incident.

Artigas put out a notice, rewarding those returning
to work 20 Yuan and threatening to treat strikers
as abstention from work without permission

 

On the sixth day of the strike, Dec. 15th, in an effort to coax the striking workers back to work, the employer offered a bonus of RMB 20 per day. Meanwhile, the employer also announced that any worker who went on strike for more than 3 days would be treated as absent. The workers denounced such threats and sneered at the employer for using a mere RMB 20 bribe in response to their demands for social insurance and provident fund. One female worker said, “I won’t take it if even they give me RMB 2000. All I want is my pension. If they give me back my social insurance, I would even work for them for free for one month.”

 

After the crackdown, workers were forced to work.
They were closely supervised by security personnel or police. A worker described at micro-blog, “if we slow down, we would be violently assaulted.”

At 7am, 18 December 2014, some 300 policemen stormed Artigas.

 

Employer makes hollow promises to negotiate on one hand Collaborates with police to crackdown on the other hand

On the same day, the workers issued a demand to the employer for collective bargaining.  The employer responded to the request affirmatively the next day and the first meeting was scheduled for the morning of Dec. 18th. Meanwhile, the employer also issued a memo supporting to a suggestion from the workers that staff representatives should be elected through direct election. However, at 7:00 a.m. Dec. 18th, the chief of the Lever Garment Limited stormed the factory with 300 policemen and insisted that negotiations would not commence until the workers returned to work. The striking workers unanimously rejected the demand. At 9:00 a.m., in an attempt to deliver shipments to Uniqlo, the employer had police disperse the workers violently, covering it up as a fire drill. Thirty one workers were arrested and many injured, with one of the injured workers hospitalized due to severe head injury. Other workers, including pregnant women, were beaten by the police. The employer demanded the workers to return to work, and to elect staff representatives that would be acceptable to the employer. The detained workers were coerced by the police to sign an agreement giving up their rights. However, all workers refused to give in and were released 12 hours later.


Mr. Yau Tze Ken, Lecturer from the Department of Social Science, Hong Kong University stated that, “in the past, Mainland Police would normally intervene a strike only when the workers starting to set up road blockades. However, the Artigas workers were violently dispersed by the police even when they were only striking in the factory premises.  Furthermore, in recent months many labor rights activists have been detained by the police and expelled by their landlords, indicating the government is toughening its crackdown on the labor movement.”

 

Artigas workers lodged a complaint to the Guangdong Provincial Federation of Trade Unions.

On their way to complain, workers were repeatedly assaulted and intimidated.

 

Official union threatens petitioning workers

The workers continued to struggle by reporting the legal violations of Artigas to the Housing Fund Administration, the Social Security Bureau, the Shenzhen Municipal Federation of Trade Unions, the Complaints Receiving Office of the Municipal Government, and the the Guangdong Federation of Trade Unions. After days of persistence and actions, a worker called Ah En claimed they have successfully forced Artigas to repay all the Housing Fund in that were in arrears. However, during the process of petition, many workers were subject to violence and threats. On Jan. 14th, while on their way to the Guangdong Federation of Trade Unions, workers were chased and blocked by both police and officials of GDFTU president, Wang Jianping.

 


Social Security Bureau connives on non-payment Artigas workers’ pensions go down the drain

According to the ‘Social Security Law’ and regulations stipulated by the Shenzhen Government, it is the employers’ responsibility to enroll their employees in the social security program within the first month of employment, and to pay an equivalent of 13% of total salary as a pension insurance fee. If a corporation fails to make social insurance contribution, it breaks the social insurance law already. A fined interest would be charged for late overdue payment that is an additional payment of fines other than the payment of the social security premium. However, the Social Security Bureau claimed that they were unable to recover more than two years of pension insurance in arrears for the Artigas workers, as they lacked the judicial authority to do so under the Administrative Law. Thus, using a loophole in the Administrative Law, Artigas refused to repay the pension insurance contributions beyond two years.

On 24 December 2014, numerous unions and labour groups in Hong Kong protested at a UNIQLO store.

 

On 24 December 2014, numerous unions and labour groups in Hong Kong protested at a G2000 store.Artigas.

 

After a series of protests and actions, the Hong Kong Confederation of Trade Unions, the Retail, Commerce, and Clothing Industry General Union, and a number of Labor NGOs finally forced a response from Uniqlo and G2000. On Jan 20th, Uniqlo announced they had called on Artigas management to initiate negotiations with the workers and their representatives. They also stated that they respect the rights of the workers and would never condone any act of violence or retaliation. In an announcement made on Jan. 18th, Michael Tien – the Chairman of G2000, a member of the National People’s Congress, and and a member of the Hong Kong Legislative Council – claimed that he had urged Artigas to resolve the dispute by means of negotiation. Meanwhile, his company terminated new procurement from Artigas as of early January, claiming that no further decisions would be made until the situation cleared up. However, in the view of HCKTU, it is not enough for G2000 to merely terminate orders to dissociate themselves from the dispute. If they are committed to carrying out their social responsibilities, they should act to ensure that Artigas workers are afforded their legal rights and receive all the pension insurance in arrears. The HKCTU will closely monitor the development of the situation.

 

Violent assaults, lawful dismantling

31

Mar 2015

Violent assaults, lawful dismantling
A harsh winter for labour organizations

 

Rampant violent attacks on labour organizations

In recent years, there have been repeated attacks of various forms on labour organizations, their organizers and workers. Since 2012, many organizations have found it difficult to operate, living under threats of violent assault. The office of Little Grass Workers’ Home in Shenzhen was violently vandalized by thugs and the organization was forced to relocate again and again. Jin Shichang of the Migrant Workers’ Centre in Zhongshan was beaten up by security guards paid by employers, and was forced to leave Guangdong. In Zhejiang Province, the office of Little Fish Labour Rights Protection Centre in Yongkang was smashed and Huang Caigen, head of the organization, was attacked and injured by thugs late at night. Zhang Zhiru of Shenzhen Chunfeng Labor Disputes Services Centre was repeatedly forced to relocate, his car was vandalized and he was threatened on the phone again and again. The violent assault on Zeng Feiyang on 26 December 2014, the head of Pan Yu Migrant Worker Documentation Center PMWDC, was the most recent case of violence: Zeng was brutally attacked by 4 unidentified thugs.


On one hand, local law enforcement authorities often turn a blind eye to these cases and leave thugs to walk free. This negligence promotes a continuous expansion of violence against labour groups. On the other hand, authorities intimidate the labour groups by frequently searching their offices, and detaining and questioning their staff members. For example, on 14 January, the head of one labour organization, Foshan Nanfeiyian Social Service Centre, was taken away for nearly 8 hours, for questioning related to “disrupting the order of business”.

 

Global support for labour organizations in China

A series of violent assaults against labour organizations generated widespread concern, both locally and globally. From late December 2014 to Jan 9, 2015, an urgent appeal petition was launched in China, with more than 25 Chinese organizations and 3,000 workers co-signing it. On 31 December 2014, the HKCTU and Globalization Monitor launched a global campaign, and by 3pm on 15 January 2015, 419 organizations (including the International Trade Unions Confederation, and International Union of Food Workers) and 3,214 individuals registered their support for Chinese labour organizations. On 16 January, the HKCTU and numerous Hong Kong labour groups staged a protest at the Liaison Office of the Central People's Government in Hong Kong, calling on the Chinese government to immediately stop the violent oppression against labour organizations.


On 16 January 2015, the HKCTU and various labour groups handed in their joint petition to the Liaison Office of the Central People's Government in Hong Kong

Chinese labour organizations and workers signed a petition to condemn violence.

 

A ban on NGOs receiving foreign funding

Apart from violent assaults, harsh legislation is going to further destablize the labour NGOs. According to a report from the Hong Kong newspaper Mingpao Daily, the Guangzhou municipal government has considered and adopted “Administrative methods of social organizations in Guangzhou City” in its executive meeting on 16 June 2014. The methods clearly state that a social organization with “major funding from foreign organizations” should be considered as “a branch, a representative organization of a foreign orgnization, or an organization which is effectively controlled and administrated by a foreign organization in this city” and therefore, its registration would be revoked. When “a revoked social organization continues to operate as a social organization”, it would be treated as “an illegal social organization”. In the view of HKCTU, it is highly possible that such control could be adopted nationwide. In early January 2015, the Xinhua News reported that, to ensure and standardize the legal operation of foreign NGOs in China, the Standing Committee of the National People’s Congress would examine a draft bill regulating foreign NGOs1. The bill would specify the application procedure of foreign NGOs’ registration and operation, as well as the consequences of their unlawful acts. “I believe many social organizations would be banned. Our Migrant Workers’ Centre would be taken down.” Zeng Feiyang, director of one of the first grassroots organizations to support workers’ rights told Mingpao. “It is the worst of the draconian laws to ban unauthorized preparatory activities of a social organization”, hes explained “Where is our freedom of association (guaranteed by Constitution) then? This Regulation itself is violating our Constitution.”


In fact, it is not only foreign NGOs that are being targeted. On 16 October 2014, the Civil Affairs Bureau of Guangzhou City issued a “Guangzhou City’s Working Regulation on Banning Illegal Social Organizations (Draft)” calling for a ban on social organizations with “unauthorized preparatory activities of a social organization”. This Regulation created heated debates in the media. NGOCN, a charity website in Guangzhou conducted a survey and, among the 221 valid responses, found 64.9% of NGO staff members believe their organization would be affected by this Regulation, if it is passed.


From local to national legislation, from relaxing the registration procedure to again tightening it, from cutting off funding to forced disappearance of NGOs’ directors, NGOs in China have gone through an extremely tough year in 2014. Some live continuously under the threat of being immediately banned by authorities. For workers, this cutting off of channels to seek help will only worsen the situation. From now on, they are being forced to walk a tougher path to safeguard their rights and they will have to rely on their own empowerment.

 

1 New Regulation in Guangzhou to worsen the survival of NGOs, Mingpao Daily, 3 January 2015

The impact of the Umbrella Movement

31

Mar 2015

on the labour movement in China and Hong Kong

 

Strike and assembly of the social services workers on 29 September 2014.

 

The quest for democracy is shared by Chinese and Hong Kong people

Between 28 September and 15 December 2014, the largest civil disobedience campaign in the history of Hong Kong took place in the form of an urban occupation, and drew global attention. Also known as the Umbrella Movement, this 79-day occupation set out to demand genuine universal suffrage for the election of the Chief Executive in 2017, and abolition of the functional constituency seats in the Legislative Council (hereafter: Legco). Support poured in from all over the world, some of it from mainland China, with people willing to pay a heavy price for Hong Kong’s democracy and universal suffrage.

 

Background

In 2007, the Standing Committee of the National People's Congress (hereafter: SCNPC) confirmed the schedule for Hong Kong to achieve universal suffrage, stating that the Chief Executive in 2017 and all Legco seats in 2020, would be elected through universal suffrage. Yet on 31 August 2014, the same SCNPC made a decision, setting limits for the 2017 Chief Executive election. The decision stated that a nominating committee of 1,200 members would be formed to nominate two to three candidates. In other words, such an election would not be what is commonly understood to be a democratic form of universal suffrage. As a result, civil society considers it “the fake universal suffrage”


The dock workers answered the HKCTU’s General Strike Call, to protest police brutality against demonstrators.

The Swire Beverages Employees General Union supported the General Strike initiated by the HKCTU.

 

The beginning of the Umbrella Movement; workers’ participation and support

After the “fake universal suffrage” proposal was disclosed, protests were organized all over Hong Kong. Between 22 and 26 September, university and secondary school students launched strikes. On 28 September, the police fired 87 cannisters of tear gas and pepper spray at protesters, who were staging a sit-in at the Government headquarters in Admiralty. Protesters had nothing but umbrellas to protect themselves yet more people joined them, and the number of participants and occupied zones increased. This was the start of the Umbrella Movement, sometimes also called “Occupy Central,” which lasted for more than two months.


The HKCTU called for a general strike on 29 September. Calling for a strike with political demands in a short notice was very difficult as there was no legal protection for employee joining a strike in such circumstance. At last, there were some unions such as The Hong Kong Professional Teachers’ Union, Hong Kong Social Workers’ General Union, Swire Beverages (Hong Kong) Employees General Union, Union of Hong Kong Dockers, Hong Kong Disneyland Cast Members' Union , Social Welfare Organizations Employees Union and others answered this call to a certain extent.  Many unions and workers participated and supported the movement in their own ways. According to an estimation of Chinese University’s Communication and Public Opinion Survey, the total participants of the Umbrella Movement could be up to 1.2 million; one sixths of the population in Hong Kong.


A crackdown can never beat our determination to fight for democracy

According to the Chinese website Weiquanwang, by the end of 2014, some 30 Mainland Chinese, including artists and citizens, were detained and arrested, due to their support for Umbrella Movement. Four artists from the Artist Village Gallery of Song Zhuang, in the Tongzhou District of Beijing, were detained for showing sympathy to the Umbrella Movement through their artwork. Making selfies to support Occupy Central was prohibited, and 10 citizens in Beijing who did so were detained on suspicion of "picking quarrels and stirring up trouble".


In Hong Kong, quite a number of worker activists were detained due to their involvement of Occupy Central. On 11 December 2014, some 200 people were arrested when an injunction against the occupation in Admirality was enforced and police conducted a clearance. Many of those arrested were workers, including five of whom were staff or members of the HKCTU.
Ah-Man, a barbender, decided to be arrested in the middle of the movement. He jokingly explained that he had been a believer in “peace, rationality, non-violence and no foul language,” but then he realized “some of us need to think that each of our involvement is significant and be willing to get arrested, or else we can never join our forces together.”


Simpson is a commuittee member of the Logistics Industry and Container Truck Drivers Union. He explained that he believes democracy is the foundation of livelihood, and that without democracy, collusion between the government and business could not be checked. He gave an example in his industry, which has been long affected by the government’s traffic planning, including the lengthy disputes of the repurchase of franchises of two main tunnels for releasing traffic jam.


On 11 December 2014, some 200 protesters stayed and waited for the final clearance in Admiralty.

 

Looking into the future

One might say that the Umbrella Movement failed to achieve any concrete and immediate results, yet it has allowed many Hong Kongers, especially the younger generation, to become politically awakened. Furthermore, even though news has been blocked and distorted, it has still reached some in mainland China and could have far-reaching impact in future.

HKCTU action update

20

Oct 2014

 

Grosby Footwear

 

Some 30 members of HKCTU and several labour organizations protested on the morning of 18 July 2014 at the Asia-Pacific merchandising department of Marks & Spencer (hereafter M&S), a major British multinational retailer. The protest was triggered by a suicide the previous morning (17 July 2014), when Zhou Jianrong, 50, jumped from a height after being dismissed by Grosby Footwear (Shenzhen) Ltd., a major supplier of M&S, for her participation in a strike. It is believed that Ms Zhou's death was caused by the unjust dismissal.

 

An open statement was issued by HKCTU and labour organizations, condemning Grobsy's heavy-handed measures against the workers, its neglect of workers' concerns over the factory's closure and its failure to address workers' demands regarding seniority benefits and dismissal compensation. A strike had broken out on 26 May 2014 and, instead of communicating with workers, Grosby unilaterally dismissed the strikers.

 

The major demands listed in the open statement include:

  1. Immediately and unconditionally reinstate all dismissed workers, including the vice-chairperson and workers' representatives of the trade union;

  2. After the reinstatement of union members, Grosby should hold labour consultative meetings with its trade union, to seek common solutions for labour conflicts;

  3. To conduct an independent investigation into Zhou Jianrong's death, to seek opinions from her family and trade union regarding further support and compensation.

HKCTU and Labour NGOs in HK did a protest action

at the Asia Pacific Office of Marks and Spencer.

 

Protest against Six Major Chambers of Commerce

 

Six major chambers of commerce in Hong Kong released a statement in a newspaper in May 2014, to jointly obstruct Guangdong Province’s ongoing lawmaking effort regarding “collective negotiation” and the recognition of workers' rights to collective bargaining. On 6 June 2014, HKCTU and other labour groups which are concerned about workers' rights in China, protested at the Annual General Meeting of the Hong Kong General Chamber of Commerce (hereafter HKGCC), one of the six signatories, in Hong Kong Convention and Exhibition Centre. HKCTU criticized the Hong Kong business groups for being entirely self-centered and failing to engage in collective negotiation to resolve labour conflicts.

 

From statistics collected from various sources, HKCTU has identified a significant growth from 382 strikes or collective labour actions in Guangdong province 2012 to 656 cases in 2013. Between March 2013 and April 2014, 15 strikes took place in Hong Kong-owned enterprises in Guangdong Province alone, affecting approximately 100,000 workers. 90% of the strikes were caused by employers' violations of labour legislation. HKCTU points out that the refusal of six major chambers of commerce to negotiate shows their attempt to maintain their “authoritarian” role in labour relations in China. It also shows that the Hong Kong business community has an unjustifiable phobia of collective negotiation and therefore opposes it without any reason.

 

The representative of HKGCC initially refused to accept the letter, and left in anger.  After an hour of protest, Malcolm Ainsworth, the Assistant Director of the HKGCC eventually came out and accepted the letter. HKCTU requested to meet the six chambers of commerce and Mr Ainsworth promised to reply within a week. A week later, instead of making a sincere offer to meet, HKGCC wrote a short reply saying that the “Business community and labour organizations could voice out their respective opinions”. This indifferent attitude is disappointing, although not surprising.

 

HKCTU did a protect action to condemn the HK Chamber of Commerce

and explain the win-win situation of having collective bargaining legislation.

 
Worker Wu Guijun won his appeal and received compensation for wrongful detention

20

Oct 2014

News of the Labour Movement in China

After more than one year of wrongful detention, worker Wu Guijun won his appeal and received compensation

Retaliated against for trying to defend labour rights

In early May 2013, Shenzhen Diweixin Product Factory relocated its plant without paying financial compensation to workers, as required by law. Subsequently, a strike lasting for more than two months broke out and one of the workers' representatives, Wu Guijun, was detained at a protest. After months of detention, he was then charged with “gathering crowds to disrupt traffic order”. Without any conviction, he was detained for over one year.

 

Justice upheld.

After more than one-year’s detention and four hearings, Wu was released on bail on 29 May 2014. On 9 June, the prosecutor then dropped the charge against him, as the law enforcement and judiciary departments failed to present evidence. Wu Guijun then said, “I was detained for one year and seven days groundlessly. I wish, the least they could do, is to give me a reasonable explanation. I shall discuss with my lawyer about our next step.”

 

Compensation claimed

Wu Guijun's family suffered a lot during his detention. Worried about him, his father was hospitalized, his mum broke her arm and his son could not concentrate on his studies. On 11 July, he filed a complaint at court, appealing the wrongful detention made by People's Procuratorate of the Bao'An District and demanding the government compensate his financial loss and mental suffering of 10,000 Yuan, and to restore his reputation. The Procuratorate of the Bao'An District eventually agreed to compensate his financial loss of 74,455.99 Yuan. The sum is calculated on the basis of a detention period of 371 days and the state's average daily wages of an employee for the previous year, 200.69 Yuan (371x200.69 Yuan). However, the verdict states that the Procuratorate and the Public Security have not violated any legal standards and therefore disagreed that Wu had suffered severe mental pain and declined his claim for compensation for mental suffering.

 

Mutual support between Chinese and Hong Kong workers

Hong Kong union leader Mr Chung Tsung Fai has long been concerned about labour rights in China and followed Wu's case closely. He commented after Wu's release,

“Wu's case shows that there is still strong collusion between officials and companies in China and the rule of law is constantly ignored by local governments. The exploitation of migrant workers comes not only from the government-business collusion, but also from the injustice of the Hukou system, a social security system which is not trusted or respected by workers. Fortunately, some workers are aware of their rights and try to organize workers' resistance. Chinese and Hong Kong workers should strengthen their ties, to learn from and support each other. I look forward to future mutual support, in upholding justice and the dignity of workers.”

 


i Wu Guijun has not demanded a concrete figure of compensation from the state.

ii Criminal Compensation Verdict (2014) No.110, issued by the People's Procuratorate of Bao'an District of Shenzhen City states, “Compensation is made to Wu Guijun, in accordance with the requirements of Article 32, Article 33 and Article 35 of the State Compensation Law of the People's Republic of China. “ The original text is available at New Citizens Movement, http://xgmyd.com/archives/6243.

iii Wu Guijun was detained on 23 May 2013 and released on 29 May 2014. He considers himself as being detained for one year and seven days (a total of 372 days). Yet the court calculated the state compensation from 24 May 2013 onwards (a total of 371 days).

Betrayed by a state-owned enterprise

20

Oct 2014

News of the Labour Movement in China

 

Betrayed by a state-owned enterprise

Ex-employees protested at China Construction Bank's general meeting of shareholders in Hong Kong

 

On 29 June 2014, at its shareholders' general meeting in Hong Kong, one ex-employee, Zhang Hong, asked China Construction Bank's chairman, Wang Hongzhang, “why did the bank unlawfully retrench and buy-out its workers?” Nobody answered this question at the meeting, which lasted for only a dozen of minutes. When Wang stepped out of the meeting room, a group of former employees surrounded him, demanding him to explain why he put “retrenched employees” in a sub-meeting and what right he had to deprive former employees, who were also shareholders, the right to attend the main meeting.

 

They call themselves “retrenched workers”.

Zhang Hong used to work at China Construction Bank's branch in Shaanxi Province. He calls himself a “retrenched worker”, meaning that his severance was bought off by the bank (termination of labour relations). In China, there are some 600,000 retrenched workers like Zhang Hong, from four major state-owned banks (Industrial and Commercial Bank, Construction Bank, Bank of China and Agricultural Bank). In June, Zhang traveled with some 40 retrenched workers from China to Hong Kong, but half of them were denied entry to Hong Kong at the border control. Of the 20 fellow retrenched workers who managed to arrive in Hong Kong, only one managed to enter the main venue of the shareholders' meeting.

 

State-owned banks lied to deprive workers' rights.

Zhang Hong recalls that when the four major banks were preparing to launch their IPO, the State Council issued documents, asking them to downsize their workforce. 110,000 workers lost their jobs before China Construction Bank was listed in Hong Kong in 2003.

 

“At that time, our branch leader made us an offer: those with five-year employment or longer would get  60,000 Yuan severance pay and temporary contract workers would get about 30,000 Yuan. After retrenchment, the bank would stop paying for our social insurance and we had to sign an agreement to look for future jobs by ourselves (an agreement to terminate labour relations voluntarily).”

 

The branch head kept persuading Zhang to take the offer, saying that from then on he would have to pass an annual appraisal and the compensation would most likely drop. With this background, Zhang and many of his fellow workers accepted this retrenchment offer and became retrenched workers.   

 

Yet, over the course of time, retrenched workers realized that those branch leaders, who had managed to reach a certain quota of “selling” the retrenchment plan to workers, were awarded with large bonuses. While the banks are making enormous profits, they have never re-employed their former employees. Instead, they recruited new workers within a short time after the retrenchment. According to China's Labour Law, this form of retrenchment is illegal. "Labourers shall be entitled to social insurance treatment (including unemployment, pension, medical insurance and other social insurance) when they become jobless”, states Article 73 of China's Labour Law. This means that workers should not be “neglected” even when they are out of a job and therefore, “retrenchment” is not necessary.

 

No one to count on except themselves.

Zhang and other retrenched workers share a grim prospect for their old age; they will be worse off than ordinary unemployed people. Over the years, they have sought help from the Central Commission for Discipline Inspection, Central Military Commission, All China Women's Federation, All-China Federation of Trade Unions, State Council and bank headquarters. Yet, none of them have listened to their case. They have also filed a case at court but the court refused to take it on, stating that it could not manage affairs related to the transformation of SOEs. Despite these hardships, the workers do not give up their fight. While some retrenched workers found their way to protest at the shareholders' meeting in Hong Kong, some 300 workers have also protested at the provincial branch in Hunan. Many of them have been detained, put under house arrest, or prohibited from talking to media. However, they are determined to fight for their rights and will never give up until justice is done.

 

The laid off employees from China Construction Bank

came to attend the annual shareholder meeting in HK.

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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