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The PRC Law on Mediation and Arbitration of Labor Disputes underlined the need to first exhaust all consultation, negotiation, and mediation avenues to resolve labor disputes. The legislation suggested that arbitration and litigation should be used only when the other alternatives failed. However, with the explosion of labor conflict cases in arbitration committees and courts, which suggests a growing preference on the part of workers to use formal legal channels over more informal negotiations with employers, 47 the central government has been trying to redirect these labor conflicts to other channels at lower local levels, and to encourage more mediation in general and negotiation within the enterprises.
Under the guiding opinion, employers should lay off workers only when necessary due to "operational difficulties. While employers are told to pay severance compensation and clear all wage arrears to avoid potential disputes, 58 both the MOHRSS Guiding Opinion and some local measures give enterprises the option to pay workers in stages rather than all at once after consulting and negotiating with the trade unions or workers directly. The Ministry of Human Resources and Social Security announced that labor disputes in had risen to ,, a near doubling of cases from a year earlier.
These issues, coupled with the large increase in the workload of arbitrators and judges, have lengthened the time it takes to resolve disputes. Local governments are also changing their procedural guidelines to adjust to the pressure of a rapidly rising caseload and dissatisfaction with long delays between case filings and hearings. There were also new reports that the rate at which workers win labor disputes is decreasing.
In addition to the large increases in arbitrated cases, Chinese courts continued to be deluged with labor disputes. In , this trend continued with nearly , cases in the first half of the year, an increase of 30 percent from the high. In Jiangyin city, labor cases at the court increased threefold. Court officials called for new measures to handle disputes earlier and to manage large, spontaneous protests that occur when factories suddenly close or initiate mass layoffs.
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These strikes are often motivated by factory slowdowns, closures, and non-payment of wages or overtime. Instead, the trade union often appears during the period of negotiation and settlement of the strike as subordinate to the government.
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Therefore, migrant workers may work in a city for many years but are unable to qualify for city residency. In February, the central government reported that 20 million migrant workers were now out of work.
Wage arrears and non-payment of wages are some of the most serious workplace problems that migrant workers face. During the global economic crisis, wage arrears problems increased dramatically as factories shut their doors. One commentator argued that his crimes were the result of his frustration and anger about his case, which had dragged on for more than one year. Migrant workers generally are able to withdraw monies only from their individual accounts, losing the larger percentage of their pensions that is paid by their employers. In addition to complaints regarding long lines and bureaucratic delays in withdrawing pensions, some migrant workers complained of the basic unfairness of the system.
Urban workers are able to draw on both individual and company accounts when they retire, while migrants are able to draw out only their individual accounts as they move from job to job. Official reports estimate that only about 17 percent of all migrant workers even participate in retirement insurance programs. Workers in China do not enjoy the right to freedom of association.
In recent years, the central government has shown support for an enlarged trade union role in collective contracting, and in union organizing in private firms in China, including multinational companies. Generally speaking, firm level union branches are weak, non-democratic, and subordinate to management. In recent years preceding the economic crisis, the ACFTU initiated a number of programs and goals that enhanced its standing internationally and increased its visibility to marginalized workers, such as migrant workers and workers in small, private firms.
This is in contrast to national legislation, which instructs the union to represent workers and restart production as soon as possible. The PRC Labor Contract Law, the Shenzhen Regulations, and other local-level regulations also gave unions a larger role in enterprise decisionmaking, including the decision to initiate layoffs. This plan was seen as a model for other unions across the country.
This is reflected in the renewed emphasis on mediation and lower level resolution of labor disputes in local regulations and measures. Reports on strikes and violent conflict between workers and the police do not mention the ACFTU as representing workers effectively, but depict it as either absent or on the side of the employer. Collective contracts and some process of collective consultation and negotiation have been part of Chinese labor relations since the s when state enterprise reform deepened and labor conflict began to increase rapidly, especially in the foreign and private sectors.
The ACFTU has championed collective contracts and collective negotiations as important foundations for trade union work at the enterprise level. In recent years, the collective contract system has received more Chinese Government and Communist Party support as part of an attempt to institutionalize a tripartite system of labor relations at the local level between the government, the ACFTU, and the employer associations.
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Many collective contracts merely reflect the basic legal standards in the locality and often are the result of concerted government or Party work to encourage the enterprise to enter into formalistic contracts rather than the result of true bargaining between management and the enterprise trade union. Wal-Mart stores in China began to draft collective contract provisions in The trade unions in Shanghai municipality Wal-Mart stores completed a collective contract agreement in that went beyond basic legal protections and rights.
The Regulations on Harmonious Labor Relations in the Shenzhen Special Economic Zone are the most extensive local regulations regarding collective contracts and collective consultation. Chapter 3 of these regulations emphasizes the role local governments and trade unions play in collective consultation.
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The regulations encourage both employers and workers to use collective consultation in accordance with the law for the establishment and modification of labor contracts, adjustments in labor remunerations, improvement in labor conditions, and resolution of labor disputes. The regulations also provide for representation by external professionals. They may also make it more possible for collective negotiations to occur in factories without an ACFTU presence. The ACFTU has also pushed for the extension of collective consultation to include regular negotiation between industrial trade unions and small and medium employers.
Rather, the ACFTU activity and continued higher profile in recent years is a proactive attempt by the government to stave off the formation of independent unions.
However, with the onset of the global economic crisis and increased concern for social instability, the ACFTU appears to have taken a more passive and subordinate role with respect to the Communist Party and government. The crackdown on legal activists and non-governmental organizations NGOs representing disadvantaged groups in public interest lawsuits is also adversely affecting the advancement of workers rights in China. There is increasing evidence of deteriorating working conditions for many Chinese workers and increasing bifurcation of the workforce as highly skilled workers still are in high demand while lower level workers bear the brunt of the global economic downturn.
The trend of informalization also hurts the lower rungs of the labor market more severely as employers seek to retain highly sought technical workers and managers while reducing the size of the less-skilled labor force. The PRC Labor Law guarantees minimum wages for workers and assigns local governments to set wage standards for each region.
Article 74 requires local labor bureaus to monitor labor practices to ensure rates adhere to minimum wage standards. Article 85 imposes legal liability on employers who pay rates below minimum wage. In addition, Article 72 guarantees minimum hourly wages for part-time workers. Illegal labor practices have undermined minimum wage guarantees.
In the cases of families that already have two children, one of the parents "is encouraged to undergo sterilization. Police sometimes detained the relatives of dissidents see Sections 1. However, with the onset of the global economic crisis and increased concern for social instability, the ACFTU appears to have taken a more passive and subordinate role with respect to the Communist Party and government. During a meeting in late May with his lawyer MoShaoping, Huang stated that he suffered from headaches and insomnia and an irregular heartbeat, and that four lumps had appeared on his chest and stomach over the past several months. As reported by the Commission in , child laborers reportedly work in low-skill service sectors as well as in small workshops and businesses, including textile, toy, and shoe manufacturing enterprises. While most reporting on "black jails" focuses on the "black jails" in Beijing, they exist throughout China. There were many reports of persons, especially FLG adherents, sentenced to mental hospitals for expressing either their political or religious beliefs.
Wage arrears remain a serious problem, especially for migrant workers. Subcontracting practices within industry exacerbate the problem of wage arrearages. When investors and developers default on their payments to construction companies, workers at the end of the chain of labor subcontractors lack the means to recover wages from the original defaulters. Subcontractors, including companies that operate illegally, neglect their own duties to pay laborers and leave workers without any direct avenue to demand their salaries. In , the Commission reported a steady increase in the number of workers who turned to labor arbitration to settle their disputes with employers.
In , disputes over working hours abuses continued to be a major reason for labor disputes, especially disputes involving overtime or wage arrears related to past abuses and to struggling enterprises avoiding legal responsibilities to cut costs. The economic crisis and increasing informalization of the less-skilled workforce also led to greater bifurcation between highly skilled workers and managers and low-level or production-level workers. In order to retain scarce skilled workers, companies continued to raise wages and benefits for such staff, while cutting those of lower-level workers who can be more easily replaced when the economy recovers.
Of workers in the state or collective sectors, 22 percent are employed informally, while the percentage rises to 84 percent for workers in the private sector. The Labor Contract Law included provisions to reduce informal employment and to encourage the signing of labor contracts, particularly longer term or open-term contracts.
The NPC also reported that contract length had become longer.
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In Jiangsu province, Open-term contracts had increased by 1. There is evidence that the high rates of "labor contract signing" are leaving out a large number of workers who now are employed in an informal and unstable manner, receiving pay by the day, hour, or piece rate with no formal agreement or relationship. There are also reports of increased use of temporary workers to avoid the burdens of formal employment, replacement of older workers with younger workers to avoid longer term contracts, and the use of contract expiration as a principal method of laying off formal employees during the economic slowdown.
In spite of legal measures to prohibit the practice of child labor in China, child labor remains a persistent problem. The overall extent of child labor in China is unclear in part because the government classifies data on the matter as "highly secret. As reported by the Commission in , child laborers reportedly work in low-skill service sectors as well as in small workshops and businesses, including textile, toy, and shoe manufacturing enterprises.
A migrant worker, Liu Pan, was crushed to death in a factory producing paper goods for the Walt Disney Company. It was discovered after his death that Liu was only 15 when he was hired at the factory. Central government legislation allows this form of child labor. National provisions prohibiting child labor provide that "education practice labor" and vocational skills training labor organized by schools and other educational and vocational institutes do not constitute the use of child labor when such activities do not adversely affect the safety and health of the students.
In May , another forced labor case was exposed at brick kilns in Anhui province. This case follows several high-profile scandals at brick kilns in and , involving forced labor and child labor.